In the Upper Tribunal
(Immigration and Asylum Chamber)
Bee and another (permanent/derived rights of residence)  UKUT 83 (IAC)
THE IMMIGRATION ACTS
Heard at Laganside Courthouse, Belfast on 22nd November 2012
MR JUSTICE BLAKE, PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
MRS LOW POH BEE
MR YAT TUCK LEONG
For the appellant: Mrs O’Brien, Senior Home Office Presenting Officer
For the respondent: Mr Buster Cox of the Law Centre (Northern Ireland)
A non-EU citizen, who is residing in the United Kingdom by reason of a derived right of residence (eg as the primary carer of an EU citizen child), cannot thereby acquire a permanent right of residence in this country
DETERMINATION AND REASONS
“…It would appear that your application for Permanent Residence was considered under the Chen ruling. Under the Chen ruling the European Court ruled that an EEA national child who holds sickness insurance would have a right to reside in the United Kingdom with his/her non -EEA national parents/carers provided that there were sufficient resources that the child did not become a burden on public funds. The ruling did not state that the EEA national child’s parent(s)/primary carer would have a right to reside as a ‘family member’ as defined under European law. In the case of Mr Chen, as he did not come under the definition of a ‘family member’ under Article 2 of Directive 2004/34/EC, he was not entitled to a residence card under European legislation.
However Mr Chen’s case was looked at under the Immigration Rules. Paragraph 257C of the Immigration Rules allows for a non-EEA parent(s)/primary carer, and other close relatives, of self-sufficient EEA children to be granted leave to enter or remain in the United Kingdom.
For this reason he would not have a right to reside as a ‘family member’ under European law, and as your applications were subsequently decided under the Immigration Rules you have been granted 5 years leave to remain in the UK. “
The First–tier Tribunal
“I accept that under Section 2 of the European Communities Act 1972, the Tribunal is required to apply EU Law where it applies, and both First-tier and Upper Tribunals have jurisdiction to allow appeals where the decision is not in accordance with the law. I am therefore satisfied that there is an appealable decision made which can be heard before me today”.
At paragraph 17 he stated:
“Regulation 26 covers appeals under the Regulations”.
“I am therefore satisfied that the decision has been made within the scope of the 2006 Regulations and the same relates to a right to reside/and to enter, under these Regulations.”
“ I am satisfied that the respondent accepts that the children of the appellants had been residing in the UK on a self sufficient basis for at least six years .The appellants themselves were granted five years leave to remain and this was extended with further leave to remain until 27th January 2016.”
He further concluded at paragraphs 23 and 24:
“I therefore find that they have acquired the right to reside permanently in the UK – Regulation 15 (1) (A) of the 2006 Regulations. As the primary carers of EEA citizens the appellants must be in a position to reside with the children in the host member state for the duration of such residence.
24. I have also considered the argument advanced by Mr Cox that, in the alternative the decision to refuse to grant the appellants permanent residence is contrary to the decision in Zambrano, in that the appellants do not have the right to work in the UK. I accept the argument in this case and that it is wrong to deny the appellants permanent residence and the right to work in the UK.”
Permission to Appeal
(i) whether there was an appealable decision and, if so,
(ii) whether the appellants were entitled to permanent residency?
At the hearing in the Upper Tribunal both representatives confirmed these were the only two issues being argued.
Issue 1: Is there a right of appeal?
… a person may appeal under these Regulations against an EEA decision.
Regulation 2 defines what an “EEA decision” is; namely:
…a decision under these Regulations that concerns a person’s …
(b) entitlement to be issued with….a…document certifying permanent residence...
Issue 2: Is there a right to permanent residence?
The position of the children
“The situation of a national of a Member State who was born in the host Member State and has not made use of the right of freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence…”
“Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a beneficiary within the meaning of article 3 of directive 2004/78?”
“In the light of the foregoing, the answer to the first question is as follows:
– Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.
– Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States”.
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national…
29. The children were born in, rather than moved to, a Member State other than that of which they are a national, but they reside in such a state. Unlike the situation in McCarthy the children do not hold the nationality of the host state. They accordingly fall outside the question posed by the Supreme Court and answered by the Court of Justice in the case of McCarthy. Their position is the same as that of the children in the Chen case. The Court of Justice has never indicated that the Chen decision no longer applies.
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there…
The position of the appellants
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State who have legally resided with the Union citizen in the host Member State for a continuous period of five years.
The appellants have resided lawfully for at least five years because they have been granted leave for at least that period. However, the definition of “family members” in Article 2 (2) (d) refers to:
“the dependant direct relatives in the ascending line…”
“42 Article 1(2)(b) of Directive 90/364, which guarantees ‘dependent’ relatives in the ascending line of the holder of the right of residence the right to install themselves with the holder of the right of residence, regardless of their nationality, cannot confer a right of residence on a national of a non-member country in Mrs. Chen’s situation either by reason of the emotional bonds between mother and child or on the ground that the mother’s right to enter and reside in the United Kingdom is dependent on her child’s right of residence.
43 According to the case-law of the Court, the status of ‘dependent’ member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence (see, to that effect, in relation to Article 10 of Regulation No 1612/68, Case 316/85 Lebon  ECR 2811, paragraphs 20 to 22).
44 In circumstances such as those of the main proceedings, the position is exactly the opposite in that the holder of the right of residence is dependent on the national of a non-member country who is her carer and wishes to accompany her. In those circumstances, Mrs. Chen cannot claim to be a ‘dependent’ relative of Catherine in the ascending line within the meaning of Directive 90/364 with a view to having the benefit of a right of residence in the United Kingdom.”
35. It is clear from this that the appellants are not their children’s dependants. As in Chen the factual situation is exactly the opposite. Consequently, they do not satisfy the definition of “family member” and so cannot benefit from the right to permanent residence in Article 16(2).
“Residence in the United Kingdom as a result of a derivative right of residence does not constitute residence for the purpose of this regulation”.
This lack of a permanent right is further reflected in the new 15A which provides for a derivative right of residence but only for so long as the person satisfies the criteria. In the case of self sufficiency it can only relate to a person under the age of 18 who would be unable to remain in the UK if the carer had to leave.
Francis J. Farrelly
Deputy Upper Tribunal Judge