United Kingdom Asylum and Immigration Tribunal

GM and AM (EU national; establishing self-sufficiency) France [2006] UKAIT 00059

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 16 and 23 May 2006

Date Determination notified:10 July 2006

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge McGeachy

Senior Immigration Judge Grubb

Between

GM and AM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Ms N Rogers, Counsel instructed by Irving & Co, Solicitors For the Respondent: Ms K Lonsdale, Home Office Presenting Officer

DETERMINATION AND REASONS

An EU national child cannot establish a right of residence based upon self-sufficiency where the resources relied upon would come from the employment of a non-EU national parent/carer who has no independent right to be in or work in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

1. The first appellant was born on 27 September 1996 and is a citizen of France. The second appellant is her father. He was born on 3 July 1967 and is a citizen of the Republic of Congo.

2. The second appellant met the first appellant's mother, a French national in the Congo in approximately 1981. They had two children, including the first appellant. In April 1999, the first appellant's mother moved to France because, it would seem, of her health. The second appellant remained in the Congo caring for his daughter. However, in June 1999, he also left the Congo, it is claimed, because of the troubles there. The first appellant remained in the Congo. The second appellant says that he lived in the Central African Republic and he lost contact with his daughter. In January 2001, he came to the UK and claimed asylum. His claim for asylum was subsequently dismissed and he exhausted his rights of appeal. He has remained in the UK since that time.

3. In March 2001 the second appellant arranged for the first appellant to come to the UK from the Congo. When here, she began attending primary school where she has remained and is looked after by her father, the second appellant. We were told that neither appellant has any real contact with the first appellant's mother who, it would appear from the second appellant's statement, is now living in New Caledonia where she was born. Because of his immigration status, the second appellant is prohibited from working and both he and his daughter are dependent upon NASS funds which he has received since his arrival in the UK.

4. In March 2004, applications were made on behalf of the appellants for an EU residence permit and residence document respectively, based upon the first appellant's claimed right under EU law to reside in the UK as a student at school and her father's concomitant right to reside in the UK as her parent/carer. On 11 March 2004, the Secretary of State refused the applications. The appellants appealed against these EEA decisions under regulation 29 of the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (as amended).

5. In a determination promulgated on 15 September 2005, Immigration Judge Pitt dismissed the appeals concluding that the first appellant had failed to establish an EU right to reside as she was not 'self-sufficient'. Her father was prohibited from working and they were both dependent upon public funds in the UK. Consequently, her father also had no right to reside as her parent/carer. In addition, the immigration judge dismissed the appeals under Article 8 of the ECHR. The immigration judge saw no reason why the appellants' could not return to the Republic of Congo (which she inadvertently referred to as the Democratic Republic of Congo) and maintain their family life there.

6. The appellants sought, and were granted, a reconsideration of their appeals under s 103A of the Nationality, Immigration and Asylum Act 2002. No challenge was brought to the judge's decision on Article 8. The sole issue was their respective EU right to reside in the UK.

   The error of law

7. Ms Nicola Rogers, who represented the appellants, argued both in the grounds of review and in her oral and written submissions to us, that the Immigration Judge erred materially in law and therefore her decision could not stand for three reasons.

8. First, the Immigration Judge's decision was fundamentally unfair. At the heart of the appellants' case was that they were 'self-sufficient' because the second appellant had an offer of a job which he would take if permitted by the Secretary of State to work. At the hearing it was accepted by the Immigration Judge that there was no dispute as to the primary facts of the case. On this basis, it was agreed that the second appellant need not give evidence. Yet, in her determination the Immigration Judge doubted the veracity of the evidence before her, particularly in relation to the offer of employment. The appellants were, thereby, unfairly deprived of an opportunity to deal with the Immigration Judge's doubts. Second, the Immigration Judge failed to give proper reasons why she had concluded that even if the second appellant could work, there would be insufficient resources to make the appellants self-sufficient. Third, the Immigration Judge was wrong to conclude that the first appellant (and through her the second appellant) did not have an EU right to reside in the United Kingdom as a student or self-sufficient person.

9. We will take the first and second issues together as they are closely related. Both arise from the Immigration Judge's treatment in paragraphs [16] to [18] of her determination of a central piece of evidence from the appellants' perspective, namely a letter from Dankif Limited dated 15 July 2005 offering the second appellant a job as a computer engineer once he had obtained a work permit. Ms Lonsdale, who represented the Secretary of State, acknowledged that the factual basis of the appellants' claims was not disputed before the Immigration Judge or indeed before us. We accept that was the position before the Immigration Judge and, for that reason, the second appellant was not called to give evidence. In those circumstances, the Immigration Judge was wrong in paragraph [16] of her determination to go behind the position accepted by the parties, and the Immigration Judge herself, at the hearing and to question the genuineness of the job offer. In the circumstances, it had to be taken at face value. Thereby, the appellants were deprived of the opportunity to deal with a matter that was an important aspect of the appellants' cases.

10. Further, the Immigration Judge concluded that even if the second appellant worked, he would not be able to support himself and his daughter so as to be 'self-sufficient'. Ms Rogers takes issue with this and submits that in reaching such a conclusion the Immigration Judge could not have properly taken account of all the evidence before her. The nature of the job offer and the evidence before the Immigration Judge of the second appellant's qualifications and experience in the computer field made the conclusion untenable. Ms Rogers' submission comes close to asserting a factual, rather than, a legal error. We must be cautious not to elevate mere factual errors into legal ones. The Immigration Judge was required to take the job offer as a computer engineer at face value; she also had a number of documents relating to the second appellant's previous experience and qualifications before her (see pp 32-40 of appellant's appeal bundle); and finally the Immigration Judge had evidence of the remuneration for work of the type contemplated by the second appellant (pp 52-65). Taking all this evidence into account the Immigration Judge could not properly conclude that the second appellant - if he worked as claimed – would not be able to support himself and his daughter and to purchase health insurance. Her conclusion is "demonstrably erroneous or baseless, not simply debatable; and ... potentially determinative" (per Sedley LJ in Krasniqi v SSHD [2006] EWCA Civ 391 at paragraph [13]). For these cumulative reasons, we have concluded that the judge erred in law.

11. The Immigration Judge's decision can only not stand, however, if her error was "material" to the decision (rule 31(2), 2005 Procedure Rules). That issue depends upon the third basis upon which Ms Rogers put the appellants' cases. Does the first appellant (and also the second appellant by derivation) have a right to reside in the UK by virtue of EU law? If the answer to that question is 'no', then the Immigration Judge's error of law was not material as the appeals were bound to fail. In addressing that issue, we indicated at the hearing that the Tribunal would proceed on the basis of the accepted evidence, in particular that the second appellant has a job offer which he will be able to take up if permitted to by the Secretary of State and which would make the appellants "self-sufficient" for the purposes of their EU rights.

    The right of residence under Article 18, EC Treaty and Directive 90/364

12. Ms Rogers provided us with a detailed and helpful skeleton argument together with a bundle of authorities in the Court of Justice. The essence of the appellants' case is as follows. The first appellant is a French national in the UK. She is a student at a state primary school. As such, she has an EU right to reside in the UK providing that she is self-sufficient. Ms Rogers submitted that the first appellant's right was derived from Article 18 EC Treaty and Directive 90/364. The second appellant, as her parent/carer, also had a derived right to remain with her in order that she may effectively exercise her own EU right. He too has to be self-sufficient. For the second appellant's right, Ms Rogers relied upon the decisions of the Court of Justice in Baumbast and R v SSHD (Case C-413/99) [2003] INLR 1 and Chen and another v SSHD (Case C-200/02) [2005] INLR 1.

13. In relation to self-sufficiency, Ms Rogers submitted that the second appellant would be able to support both himself and his daughter if allowed to work. His potential earnings could be taken into account. Not to do so would fall foul of the requirement found in the EU legislative provisions and the jurisprudence of the Court of Justice that any limitation on the right of residence must be proportionate in the sense of being necessary for the protection of the public finances of the Member State.

    The applicable law

14. As we have indicated, the appellants rely – at least in respect of the first appellant's rights – upon Article 18 EC Treaty and Directive 90/364. We were also referred to a number of other EU provisions including Directives 93/96 (dealing with students on vocation al courses) and EU Regulation 1612/68 and Directive 68/360 (dealing with workers and their families). Their transposition into UK law is, for the most part, effected by the Immigration (European Economic Area) Regulations 2000, SI 2000/2326 (the "EEA Regulations 2000"). The relevance of some of these provisions to the rights of movement and residence of a school student and her parent/carer is, in our view, tangential at best. However, the real difficulty is that they have been replaced by Directive 2004/38 with effect from 30 April 2006. That directive has been transposed into UK law by the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the "EEA Regulations 2006") also with effect from 30 April 2006. Ordinarily this would not present a problem since the Secretary of State's decisions were taken before 30 April 2006 under the EEA Regulations 2000 and they would, again ordinarily, remain in effect for the purposes of those applications and any subsequent appeals. The transitional provisions in the EEA Regulations 2006 produce, however, an altogether different, and somewhat surprising, outcome.

15. Schedule 4 to the EEA Regulations 2006 provides in paragraph 5(1) provides as follows:

    "5(1) Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30^th April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA Decision under these Regulations."

16. That provision applies here. There are no transitional provisions "saving" the EEA Regulations 2000 for 'old cases' which are quite simply revoked by effect of regulation 31(2) of and schedule 3 to the EEA Regulations 2006. Hence, the appellants are to be treated as appealing against decisions under the latter Regulations to refuse them a registration certificate and a residence card respectively. The appeal is to be treated as brought under regulation 26 of the 2006 Regulations. The substance of the appellants' rights (particularly that of the first appellant) is governed by the EEA Regulations 2006 and, it would seem, the new EEC Directive 2004/38. There may be situations where this retrospective application of the latter two provisions creates difficulties and may affect the outcome of an appeal. This is not one of those cases. As will become clear, for our purposes in this appeal Directive 2004/38 and the EEA Regulations 2006, reflect the earlier EU legislative provisions and their interpretation by the Court of Justice.

    The first appellant

17. The proper starting point in this appeal must be to consider what, if any, rights of movement and residence vest in the first appellant under EU law. Any right that the second appellant may have, must be derived from the first appellant's rights as an EU citizen in the UK. It has rightly not been suggested to us that the second appellant could have any free-standing rights of his own.

18. The first appellant's EU right is based upon her being a school student and, it is claimed, a self-sufficient EU citizen in the UK. It is not suggested that the first appellant's rights are derived from her receipt of services. That would be unarguable since it is clear that such services must be provided for remuneration (Belgium v Humbel [1989] 1 CMLR 393). Whilst that could apply to a student at a fee-paying school, it has no application to a student, such as the first appellant, who is in receipt of free state education. Likewise, the first appellant cannot rely on Directive 93/96 which only applies to students following vocational training courses. Obviously, that has no application to a student undergoing primary (or indeed secondary) school education (Lair v Universität Hanover (Case 39/86) [1988] ECR 3161).

19. Instead, it is said that the source of the first appellant's right as a student is Article 18 of EC Treaty which is in the following terms:

    "1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

    
    2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251."

20. This provision does not, on its face, explicitly recognise the right of free movement and residence of a student. It is a general right of EU citizens subject, as Article 18(1) makes clear, to limitations and conditions laid down to its exercise. It might further be argued that Article 18 itself does not create a free-standing right but rather requires "measures [to be] adopted to give it effect". One such legislative provision would be, as we shall see shortly, Directive 90/364 in respect of the "self-sufficient" EU citizen.

21. Ms Rogers, however, relies upon the Court of Justice's decision in D'Hoop v Office national de l'emploi (Case C-224/98) [2202] ECR I-6191 for the proposition that EU nationals in education in another member State are exercising their fundamental right to move and reside freely under Article 18. The case concerned a Belgium national who had completed her secondary education in France and then returned to Belgium to study at university. After university, she sought a social benefit paid to young people who have completed their studies and are seeking their first job. She was refused because she had completed her secondary education in France rather than Belgium. The Court of Justice concluded that this was unlawful. The Court of Justice reasoned that it resulted in an inequality of treatment between an individual who had exercised a "right of free movement" under Article 18 (as had the applicant by studying in France) and one who had not and had completed their studies in their own country (see, in particular paragraphs [30] and [33]).

22. D'Hoop was cited with approval by the Court of Justice in R(Bidar) v London Borough of Ealing (Case C-209/03) at paragraph [35] but the latter case does not seem to take the matter any further forward. Be that as it may, those decisions are, in our view, founded upon that right and are, we would accept, authority for its existence. What D'Hoop and Bidar do not address is the scope or substance of the right. For that, we turn to the recent decision of the Court of Appeal in Ali v SSHD [2006] EWCA Civ 484.

23. The essential facts of Ali v SSHD were as follows. The appellant was a Somali national whose claim for asylum in the UK had been rejected. As a result of a relationship with a Dutch national, he had a son who was a Dutch national of Somali origin and lived in the UK. At the time of the application his son was aged 5 and in school in the UK. The appellant argued that his son, as an EU national, had a right of residence in the UK by virtue of Article 18 of the EC Treaty and that he, as his primary carer, had a derived right which entitled him also to reside in the UK to look after him. The family had no means of support other than through the social security system. The appellant argued that Article 18 created an unlimited right of residence. The Secretary of State argued that the existence of the right was predicated upon the individual having sufficient resources not to be an unreasonable financial burden upon the state. Article 18 did not create an unqualified or unlimited right. The Court of Appeal accepted the latter argument. Referring to "the persistent theme" in the EU legislation and Court of Justice's case law, the Court of Appeal concluded that Article 18 did not confer an unqualified right of residence. It arose only when the EU national would not be "an unreasonable burden on the public finances" of the host country. Consequently, the appellant's son had no right of residence derived from Article 18, and hence the appellant had no derived right as his carer. We are grateful to Ms Lonsdale for referring us to this recent and important case. The Court of Appeal's decision is instructive for a number of reasons.

24. First, and perhaps most obviously, with the exception of one matter its facts strongly resemble the instant case. Like the second appellant in this appeal, the appellant in Ali did not work and, it would seem, could not work presumably because he too was a failed asylum seeker. He and his son, as are the appellants in this case, were dependent on public funds to survive. The one matter of difference is, of course, that in Ali the appellant did not produce any evidence of a job offer. The appellant in Ali could not, therefore, mount the argument which Ms Rogers does in this appeal that, as a result, the appellant was self-sufficient. That distinction on the facts cannot be gainsaid. Thus, the situation with which we are faced in this appeal did not arise for decision, nor was it discussed, by the Court of Appeal.

25. Second, there is no doubt that the Court of Appeal accepted that an EU national does have a right of movement and residence within the EU qualified by the need for self-sufficiency. The probable source for that right was Article 18 itself. We say probable because the Court did not interpret D'Hoop, as we have done, as recognising any right under Article 18 (see para [20] per Keene LJ). The Court of Appeal was certainly influenced by, and may have located the source of the right in, Directive 90/364 which confers a right of residence for EU nationals (and certain family members) in other Member States provided they are "self-sufficient", namely that they have comprehensive sickness insurances and the resources to avoid being a burden on the social assistance system of that other country. Article 1 of 90/364 provides as follows:

    "1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

    The resources referred to in the first subparagraph shall be deemed sufficient where they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant and, where appropriate, the personal circumstances of persons admitted pursuant to paragraph 2.

    Where the second subparagraph cannot be applied in a Member State, the resources of the applicant shall be deemed sufficient if they are higher than the level of the minimum social security pension paid by the host Member State.

    2. The following shall, irrespective of their nationality, have the right to install themselves in another Member State with the holder of the right of residence:

    (a) his or her spouse and their descendants who are dependants;

    (b) dependent relatives in the ascending line of the holder of the right of residence and his or her spouse."

26. In Ali v SSHD, the Court of Appeal may have intended no more than to rely upon the self-sufficiency element of Directive 90/364 in order to fashion a mirror requirement where reliance is placed directly upon the right in Article 18 (see the court's reference to R v SSHD, ex parte Vitale [1996] All ER (EC) 461 at paras [23] and [24] of Keene LJ's judgment). Thus, whether derived exclusively from Article 18 or when read together with Directive 90/364, the content of the right is clear from the Court of Appeal's decision which is binding upon us and applicable in this case (and see now the Court of Justice's recent decision, Commission v Belgium (Case C-408/03) at paras [34] – [36]).

27. For completeness, we should add that Directive 90/364 was given effect in the UK by the EEA Regulations 2000, in particular regulation 5 (defining "qualified person" as including a "self-sufficient person" and regulation 3(1)(e), (2) and (5) defining "self-sufficient person"). We note that the EEA Regulations 2000 did not include a school student within the definition of a "student" (reg 3(1)(g)) which is restricted to a student following a "vocational training course" (reg 3(1)(g)(ii)).

28. Directive 90/364 has now been replaced by Directive 2004/38 and, in turn, the EEA Regulations 2000 have been replaced by the EEA Regulations 2006. Both contain provisions conferring rights of residence on EU nationals (and certain family members) who are self-sufficient (Art 7 and regs 6 and 4(1)(c), (2) and (4)). Regulation 4(1)(c) of the EEA Regulations 2006 states that:

    "(c) "self-sufficient person" means a person who has—

    (i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and

    (ii) comprehensive sickness insurance cover in the United Kingdom; ... ."

29. Regulation 4(2) requires that the EU national's "family members" are also covered by comprehensive sickness insurance and the total resources of that individual and his family will avoid them becoming a burden on the social assistance system. It provides as follows:

    "(2) For the purposes of paragraph (1)(c), where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person—

    (a) the requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden;

    
    (b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover."

30. The level of resources required is that sufficient to avoid eligibility to social assistance in the UK. This is found in Regulation 4(4):

    "(4) For the purposes of paragraphs (1)(c) and (d) and paragraphs (2) and (3), the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system."

31. In addition, for the first time both Directive 2004/38 and the EEA Regulations 2006 contain specific provisions including, within the definition of a "qualified person" who is a "student", persons other than those following a vocational training course such as children attending a state school. It will suffice to set out regulation 4(1)(d) of the EEA Regulations 2006 which states:

    "(d) "student" means a person who—

    (i) is enrolled at a private or public establishment, included on the Department for

    Education and Skills' Register of Education and Training Providers or financed from public funds, for the principal purpose of following a course of study, including vocational training;

    (ii) has comprehensive sickness insurance cover in the United Kingdom; and

    (iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence."

32. Thus, as with the 'self-sufficient' EU national, an EU national student must also be 'self-sufficient'. The requirements effectively mirror one another. Regulation 4(3) stipulates that the EU national must "assure" the Secretary of State that he and his family members have the resources not be a burden on the social assistance system during their period of residence. We do not see any difference in substance between the student's requirement to "assure" the Secretary of State that he has those resources (reg 4(3)) and the self-sufficient person's obligation to "have" those resources (reg 4(2). As we have already seen, Regulation 4(4) specifies that a person's resources are "sufficient" if they exceed the resources below which the individual will be eligible for social assistance.

33. In Ali v SSHD, the Court of Appeal considered that its decision reflected the requirements of Directive 2004/38 (see para [27] per Keene LJ). That is plainly correct even where the EU national and his family rely upon the right of residence for a period of less than three months (see, Art 6 read with Art 14(1) Directive 2004/38 and reg 13(3)(b), EEA Regulations 2006 – must not become "an unreasonable burden on the social assistance system").

34. The upshot is that an EU citizen, whether school student or not, has a right of free movement to and residence in another Member State providing that she (and her family members) are self-sufficient in the sense of being covered by comprehensive sickness insurance and not being an (unreasonable) burden upon the social assistance system of the receiving state. That right is derived from Article 18 of the EC Treaty and Directive 90/364 and is repeated in substance in Directive 2004/38 and the EEA Regulations 2006. Subject to the element of self-sufficiency, that right applies to the first appellant in this appeal.

    The second appellant

35. What right of residence, if any, does the second appellant possess? It was not disputed before us that he does not have a free-standing right to reside in the UK under EU law or indeed any law. His right, if any, is derived from that of his daughter as her parent/carer. None of the EU or domestic legislative provisions to which we have referred expressly deals with the second appellant's situation, including the most recent Directive (2004/38) which was drafted before the relevant Court of Justice authority (Chen) was decided. Although the EU legislative provisions all confer rights upon "family members" of an EU citizen exercising the relevant Treaty right, the second appellant does not fall within the category of "family member". With some slight differences in wording, so far as relevant for our purposes, "family members" are restricted to spouses (or civil partner) of the EU national, and dependent ascendants or descendants (or those who are under 21) of the EU national or his spouse (or civil partner). Whilst the second appellant, as her father, is undoubtedly an "ascendant" of the first appellant, he is not dependent on her (Art 2(2), Directive 90/364; reg 6, EEA Regulations 2000; Art 2(2), Directive 2004/38 and Reg 7(1) and (2), EEA Regulations 2006). Rather, it is the first appellant who is financially dependent upon her father.

36. That the carer/parent may in certain circumstances have a derived right of free movement and residence in line with that of the EU national is, however, beyond contention. Ms Rogers referred us to the decisions of the Court of Justice in Baumbast and R and Chen. Both recognise the derived right of a primary carer to reside with a dependent EU national child. It is, however, the Court's later decision in Chen which establishes the right to reside as the carer of a self-sufficient EU national child. However, we should first look at the Court's earlier decision in Baumbast and R upon which formed the basis for Chen.

37. In Baumbast and R, Mr B was a German national who worked in the UK. He married Mrs B, a Columbian national. There were two children of the family, the elder was a Colombian national and the daughter of Mrs B and the elder was a daughter of Mr and Mrs B and had dual German and Colombian nationality. They went to school in the UK. Mr B then ceased to work within the UK or other EU country and consequently he ceased to be exercising EU rights as a worker and hence his right to reside in the UK on that basis also ceased. The children, however, continued to have an independent right to remain in education under Article 12 of Council Regulation 1612/68. Mrs B had no primary right of her own. However she argued that, as the children's primary carer, she had a right to reside with them in order that they could effectively exercise their EU rights. The Court of Justice agreed. At paragraph [73] of its judgment, the Court concluded that the child's right to remain in education:

    "necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member state during his studies. To refuse to grant permission to a parent who is the primary carer of the child exercising his right to pursue his studies in the host Member state infringes that right."

38. It might be thought that the Court's recognition of Mrs B's right is some indication of the existence and scope of the second appellant's right in this appeal. It is not. Whilst the case does illustrate the Court of Justice's approach to children when exercising their EU rights to reside and the need for them to have their parent/carer with them, Mrs B's right was derived from her daughter's free-standing right under Article 12 of Council regulation No 1612/68 as the child of a former EU national worker. Neither her right, nor that of her daughter, depended upon Article 18 and Directive 90/364. Hence, the element of, and need to establish, 'self-sufficiency' was not present.

39. By contrast, Mr B's right of residence was based upon Article 18 and Directive 90/364. Mr B supported himself and his family from income derived from employment outside the EU. He and his family were covered by comprehensive sickness insurance in Germany which, apart from emergency treatment, covered them in the UK. Even though Mr B had ceased to have a right to reside as an EU national worker, the Court held that he had a right to reside as a self-sufficient person by virtue of Article 18 and Directive 90/364. As will be clear from this, the Court of Appeal's decision in Ali v SSHD, which we discussed above, reflects the decision in Baumbast and R. However, Baumbast and R tells us nothing about any derived rights of the family members of a 'self-sufficient' person. That issue was raised before the Court of Justice but remained unanswered because the rights of Mr B's family to reside in the UK existed independently of his right.

40. The rights of family members of a (claimed) self-sufficient EU national who are themselves non-EU nationals arose directly in Chen. The case concerned a young child who was an EU national living in the UK. She lived with her parents who were Chinese nationals and it seems to have been accepted that of her mother was her primary carer. Her parents were employed by a Chinese company owned by them. As a consequence, the child's mother had sufficient resources to support herself and the child. They also had comprehensive health insurance. The Court of Justice held that the child had a right of residence as a self-sufficient person by virtue of Article 18 of the EC treaty and Directive 90/364. It sufficed that there were adequate resources available to her from her mother to make her self-sufficient. It was not necessary that she should have the resources personally. Further, the Court recognised the child's mother, as the primary carer of an EU national who was exercising her EU right of residence as a self-sufficient person, was herself entitled to reside in the UK, in order to permit the child to enjoy its own EU right. Relying, inter alia, on its earlier decision in Baumbast and R, the Court of Justice said (at para [45]):

    "... a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child's right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence ... ."

41. Although not made explicit by the Court of Justice we consider it palpably clear that the carer's right was subject to the carer herself being self-sufficient. Those were indeed the facts of the case and the Court's reliance upon Article 18 and, in particular, Directive 90/364 indicates this was the Court's view. Article 1(1) of Directive 90/364 requires that

    "[the EU nationals] themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence." (emphasis added)

    (See to similar effect Reg 4(2) of the EEA Regulations 2006.)

42. Of course, the Court of Justice was not strictly concerned with a "family member" falling within the Directive but in extrapolating the right of residence to those who are primary carers of the EU national, the Court could not have intended to omit the fundamental requirement for those relying upon Directive 90/364 that they also should be self-sufficient.

43. Our conclusion is reflected in paragraph 257C of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395) which seeks to give effect to the Chen decision in the UK. The particular provision is paragraph 257C(iv).

    "257C The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child are that the applicant:

    (i) is:

    (a) the primary carer; or

     (b) the parent; or

     (c) the sibling,

    of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person; and

    (ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and

    (iii) in the case of a sibling of the EEA national:

    (a) is under the age of 18 or has current leave to enter or remain in this capacity; and

     (b) is unmarried and is not a civil partner, has not formed an independent family unit and is not leading an independent life; and

    (iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and

    (v) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

    In this paragraph, "sibling", includes a half-brother or half-sister and a stepbrother or stepsister." (emphasis added)

44. We turn now to consider the central issue in this appeal - establishing "self-sufficiency".

    Establishing self-sufficiency

45. One might be forgiven for thinking that the first appellant's reliance upon an EU right to reside as a student and/or self-sufficient person, and through her the right of her father to reside as her carer, is ex facie untenable. The simple fact is that she is not self-sufficient. She (through her father) is dependent upon NASS funding. He does not work and does not support her. There is no evidence that either has comprehensive sickness insurance. How could it possibly be said that they are 'self-sufficient' in the sense required? In essence, those were Ms Lonsdale's submissions on behalf of the Secretary of State. As she put it, the appellants' case is being run on the basis of the potential for work, the possibility of money and the possibility of medical insurance. Potential self-sufficiency is not enough.

46. We were not referred to any authority, domestic or in the Court of Justice, which directly dealt with the point before us. The underlying facts of this appeal are materially different from both Baumbast and R, and Chen. In the former, no member of the Baumbast family was dependent on social assistance in the UK. Mr B had sufficient income to support his family from work carried out outside the UK. In the latter case, Mrs Chen supported herself and her daughter from income derived from the family business in China. Mr B had sickness insurance in Germany which the Court of Justice considered enough to satisfy the requirement of 'self-sufficiency'. Mrs Chen had private health insurance for herself and her daughter in the UK.

47. To avoid the inescapable, and potentially unfavourable, contrast with the facts of Baumbast and R and Chen, Ms Rogers submitted that the prohibition on the second appellant's employment should be disregarded as being contrary to EU law – it is a disproportionate restriction upon the first appellant's right to reside. The second appellant has a job offer which, on the facts we must accept, will support them both and allow for health insurance in the UK to be purchased.

48. Ms Rogers is driven to put her case in this way because it will inevitably be the case that a carer/parent in the second appellant's situation will be prohibited from taking employment. It is a condition of the temporary admission granted to asylum-seekers such as the second appellant pursuant to the Immigration Act 1971 (see, Sched 2, paras 21(2) and (3)). For this reason, it was also the position of the appellant in Ali v SSHD although there, the appellant had not availed himself of the opportunity to seek 'the invitation to treat' for an offer of a job as the second appellant has done in this case. Ms Rogers' argument, if correct, means that, if that had been the case, the Court of Appeal would have been constrained to reach a diametrically opposed result in his appeal to the one that they did.

49. Further, the carer's inability to work is also the effect of the immigration rules dealing with carers/parents of a self-sufficient child. Paragraph 257D states that it will be a condition of the grant of leave to enter as the carer of an EU self-sufficient child that the carer is prohibited from employment in the UK. Paragraph 257C(iv), which we set out above, makes plain that the carer's self-sufficiency must arise without the need to take employment. It is this domestic regulation of the carer's ability to work which Ms Rogers effectively attacks. She relies upon the provisions found in the EU legislative provisions which, in very similar terms wherever found, require in the words of the fourth recital in the preamble to Directive 90/364 that

    "beneficiaries of the right to residence must not become an unreasonable burden on the public finances of the host member State".

    (See also recital (10) of the preamble to Directive 2004/38.)

50. Ms Rogers submitted that the limitation on the right of residence must be exercised in accordance with Community law and with the principle of proportionality relying on Baumbast and R at paras [90] and [91] and Chen at para [32]. It could hardly, she submitted, be proportionate in order to protect the public finances of the UK to prevent the second appellant working and thereby make him (and his daughter) dependent upon the state when they would otherwise be self-sufficient. Ms Rogers referred us to a number of Court of Justice decisions, in particular Commission v Belgium (Case C-408/03), decided on 23 March 2006; Commission v Italy (Case C-424/98) [2000] I-4001; Grzelczyk v Centre public d'aide sociale d'Ottinies-Louvain-la-Neuve (Case C-184/99) [2001] ECR I-6193 and Chen, at para [30].

    Discussion

51. Ms Rogers argued that the Court of Justice eschews any prohibition on the origins of resources that can be taken into account to establish 'self-sufficiency'. We agree that the Court has done so where those sources are legitimate and no reliance is placed upon a right to work which has to be derived from the self-sufficient EU national herself. In both Baumbast and R and Chen, the family's self-sufficiency was established without reliance upon any funds derived from Mr B or Mrs Chen working in the UK or other EU Member State. The exhortation of the Court of Justice in Chen that as regards those funds Directive 90/364 "lays down no requirement whatsoever as to their origin" must be read in that context. Although the point does not need to be resolved in this appeal, we have no doubt that there must be some limitations on acceptable sources, for example if the funds are derived from criminal activity or where the relied upon resources are derived from illegal work in breach of domestic law.

52. In Commission v Belgium the Court of Justice decided, following Chen, that an EU national was not necessarily restricted to relying upon his own "personal resources" and may be entitled to rely upon the income derived from a family member in the host Member State. In particular, the EU national could rely upon income derived from his partner who was resident in the host state even if there was no legally binding obligation upon the latter to support the EU national. We do not consider that the situation in Commission v Belgium is comparable to that of the appellants in this appeal. What is important about this case for our purposes is that the ability (or right) to work of the partner of the EU national and therefore to support the EU national was not itself dependent upon a recognition of that EU national having a right to reside under Directive 90/364. The partner (who was a Belgium national) had a pre-existing right to reside and work in Belgium independently of the EU national. On that basis, it was disproportionate to exclude this legitimate source of income when establishing the EU national's right of residence. That, of course, is far removed from this case where the EU national's right can only be established if the family member is allowed to work and the latter has no independent right to reside or work in the UK.

53. In Commission v Italy, the Court of Justice was concerned with Italian law that imposed restrictions on the documents which could be used to prove self-sufficiency for those covered by Directive 90/364 and for students engaged in vocational training and their families covered by Directive 93/96. Also, Italian law required such a student to attest to a certain level of resources in order to establish self-sufficiency. The Court made the general observation that the Directives do not lay down the manner in which the beneficiaries of that Directive must demonstrate that they fulfil its conditions (at para [34]). Consequently, the Court held that the limitations in Italian law were impermissible. The matter is now dealt with in Article 8(4) of Directive 2004/38. The decision does not, in our view, materially advance the appellants' arguments in this case.

54. Finally, in Grzelczyk, the Court held that a student's temporary recourse to public funds in a host Member State did not take the student outside Directive 93/96. It would not be an unreasonable burden on that state's public finances. There was a need for a certain degree of "financial solidarity" between nationals of Member States particularly where the dependence on public finances was temporary (at para [44]). It is not difficult to see why the Court concluded that a temporary loss of self-sufficiency should not deprive the EU national student of his existing right to reside. Again, however, the decision casts no light upon the issue raised in this appeal where the appellants' seek to establish a right to reside.

55. Ms Rogers also relied upon Article 5 of Directive 68/360. That provides:

    "Completion of the formalities for obtaining a residence permit shall not hinder the immediate beginning of employment under a contract concluded by the applicants."

56. Ms Rogers submitted that the second appellant could not be prevented from working prior to the issue of a residence document. That argument is, however, misconceived. Directive 68/360, and Article 5 in particular, is concerned with the rights of an EU national worker. It recognises that when the right to work exists, he cannot be prevented from working pending the formality of the issue of a residence document. The latter is, of course, merely evidence of his right; it does not confer the right which is derived from his EU nationality and intention to work. This appeal is wholly different. The second appellant does not fall within Article 5 of Directive 68/360 – he is not an EU national worker. Further, the second appellant seeks, in effect, to establish a right to work. He has no pre-existing right which is being administratively held up by the failure to issue the relevant documentation. Article 5 has no relevance directly or indirectly to the second appellant's situation. Even if it did, the letter relied upon for his future employment is not a "contract concluded" between the second appellant and an employer. It is merely an invitation to contact them so that they can employ him in the future.

57. Ms Rogers submitted that under the various Directives the family members of EU nationals exercising EU rights were permitted to work and thus it would be exceptional to prevent the second appellant from doing so. In her premise Ms Rogers is correct but not in her conclusion. Article 11 of Council Regulation 1612/68 confers a right to work upon family members of EU workers. A similar right is conferred upon the family members of a student undertaking a vocational training course by virtue of Article 2(2) of Directive 93/96; likewise for family members of EU nationals who have ceased to work or are retired by virtue of Article 2(2) of Directive 90/365. The equivalent provision is now found in Article 23 of Directive 2004/38.

58. It is readily understandable why such family members are given a derived right to work. Once it is accepted that they should be allowed to reside with the EU national, it is only natural that they should be allowed to carry on their every-day lives including, if they wish, working in that Member State otherwise that might affect their willingness to reside with their EU national relative and hence discourage the exercise of his EU right. These situations, however, have one crucial feature that distinguishes them from this appeal. The family member's right to work is derived from the EU national's pre-existing right to work, study etc. Here, the second appellant's claimed right to work is not derived from the EU national's right but rather is a prerequisite to establishing that right in the first place.

59. Directive 90/364 also contains a similar provision in Article 2(2) which states, inter alia, that

    "[t]he spouse and the dependent children of a national of a Member State entitled to the right of residence within the territory of a Member State shall be entitled to take up any employed or self-employed activity within the territory of that Member State, even if they are not nationals of a Member State."

60. Here again, the family member's right to work is predicated upon the EU national's existing right of residence as a self-sufficient person. None of these provisions, therefore, suggests by analogy that the second appellant has a right to work in order to create the EU national's primary right of residence.

    Conclusion

61. Why is it that we feel concerns about treating the circumstances of the appellants in this appeal in the same way as those of the appellants in both Bambast and R and Chen? There are undoubtedly superficial similarities with these cases, in particular with Chen. Are there really material distinctions which dictate a different outcome?

62. The solution may be found in an examination of the underlying purpose that leads Community law to recognise the derivative right of free movement for family members of EU nationals exercising Treaty rights. Those rights, of course, apply to family members even if they are not themselves EU nationals. The real purpose of the right to accompany (or join) and reside with the EU national is that without such a right the EU national could be inhibited from exercising his EU right of free movement and residence. The starting point is that the EU national has a right and therefore all principles of Community law work to avoid difficulties in its exercise. It follow from that that in a typical case the EU national's right exists independently of the presence of family members in the host country. That was also the situation in Chen. Although the parent/carer had to be in the UK in order for the EU national child to exercise her right of residence, that right existed independently of the presence of the family member. The child's self-sufficiency was derived from her parents but it would have existed even if they had not been in the UK – it was derived from their business in China. The rationale of Chen is that the presence of the parent/carer enabled the child to exercise the right it undoubtedly – and independently – had.

63. What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence. Thus, the family member's presence in the UK (and right to work) is relied upon not in order to avoid a 'clog' or 'chill' on the exercise of the right of the EU national child but rather in order to create that very right itself – the right from which the family member then seeks to derive his own right to reside as her carer/parent. Only if the parent/carer resides in the UK with the EU national child can it be said that the child has an EU right at all. The argument is then exposed for what it is – entirely circular. Even more problematically, it is a circular argument that begins in the wrong place because it begins with a person who has no right to begin with, unlike in Chen. There is nothing in the Court of Justice's jurisprudence, in particular in Chen, or anything in principle which should cause us to decide that a non-EU family member should be able to reside in the UK with an EU national child (not to allow it to exercise an existing right but rather) in order to establish the right in the first place. Any right of the family member must be derived from an existing right of the EU national which he or she has individually and separately. That is simply not this case.

64. Further, if the appellants' arguments are accepted, there would be a number of consequences which we consider have no justification in Community law.

65. First, it would mean that an EU citizen could enter and reside within another Member State on the basis of self-sufficiency providing his accompanying non-EU family member could realistically gain employment in the UK. The family member would, thereby, acquire a right to work equivalent to that of an EU national who wished to work in another Member State. That would elevate what has always been necessarily a derivative right for a non-EU national into the primary right previously only enjoyed by EU nationals. In our view, the appellant cannot assert a right to work (which he does not otherwise possess as a non-EU national) in order to establish the first appellant's right of residence based upon her 'self-sufficiency'. The attempt to supplant the Member State's right to decide upon its own immigration controls in this way has no foundation in Community law.

66. Second, EC rights of free movement and residence were originally conceived as rights conferred upon the economically active, for example workers and the self-employed (Roux v Belgium (Case C-363/89) [1991] ECR I-273). Neither appellant does, nor could, rely upon a right of this nature. Rather, they rely upon Article 18, EC Treaty introduced by the Maastricht Treaty and its progeny in the shape of Directives 90/364 and 2004/38 which extend EU free movement rights in certain circumstances to non-economically active EU citizens and their family members. The effect of Ms Rogers' argument, if correct, would confer upon an EU national's carer/parent a right to work (the economically active right) in order that the non-economically active right of the EU national could be established. We do not consider that Article 18 and the relevant Directives can be interpreted and applied so as to create a right to work for the non-EU national carer/parent in these circumstances. It is not, in our view, required by any of the Court of Justice jurisprudence or any of the arguments presented to us.

67. For these reasons, the first appellant has failed to establish that she has a right to reside in the UK as a student or as a 'self-sufficient' EU national. Consequently, the second appellant has also failed to establish his claimed right to reside as her carer/parent. Despite Ms Rogers' invitation to do so, this is not a matter which we consider in our discretion should be referred to the Court of Justice under Article 234 of the EC Treaty. We are confident in our conclusion on Community law: act claire applies.

    Decision

68. For the forgoing reasons, the immigration judge was bound to dismiss the appeals. Consequently, there was no material error of law in her determination and the decision to dismiss the appeals must stand.

    A GRUBB

    SENIOR IMMIGRATION JUDGE