In the Upper Tribunal 
(Immigration and Asylum Chamber)                           

Bee and another (permanent/derived rights of residence) [2013] UKUT 00083 (IAC)

THE IMMIGRATION ACTS

	Determination Promulgated	
Heard at Laganside Courthouse,  Belfast on 22nd November 2012 		
	…………………………………	

Before

MR JUSTICE BLAKE, PRESIDENT 
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
                                                                                                                      
Appellant
AND

MRS LOW POH BEE

						    AND

MR YAT TUCK LEONG
      Respondents

Representation:
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

Introduction

1.	This appeal is against the decision of First-tier Tribunal Judge Fox, promulgated on 16th May 2012. The Judge allowed the appeals of Mrs Bee and Mr Leong and found as a preliminary point that there was an appealable decision. His decision was that Mrs Bee and Mr Leong were entitled to permanent residence under European law. For convenience, we will refer to the parties as they were in the First-tier Tribunal. 

2.	Mrs Bee and Mr Leong are Malaysians, married to each other. They live in Northern Ireland. They have three children, twins born in 2002 and a son born in 2005. Their children were born in Northern Ireland at a time when the Irish Constitution claimed territorial jurisdiction over Northern Ireland and provided Irish citizenship by jus soli. Consequently, their children have Irish citizenship. 

3.	In 2005 the appellants were granted leave to remain, initially for one year and then for a further five years because of the judgment of the European Court of Justice in Case C-200/02 Kunqian Catherine Zhu  and  Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925 [2005] 1 QB 325, [2004] 3 WLR 1453 (hereinafter referred to as Chen). It was accepted their children were exercising Treaty rights on the grounds of self sufficiency. To give their rights of residence effect, their parents, as their primary carers, were allowed to remain.

The application 

4.	On 10th November 2009 the appellants sought confirmation that they were entitled to reside permanently in the United Kingdom by reason of European law. 

5.	They received a letter incorrectly referring to their asylum claim and granting them further leave. They then received a further letter granting them residence for a further five years until 27th January 2016. 

6.	Their representatives wrote to the respondent seeking a decision on their application for permanent residence. This elicited a reply dated 15th August 2011 which stated:

“…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. “

7.	 The appellants appealed. Their appeal was admitted subject to a preliminary issue as to whether there was an appealable decision. 

The First–tier Tribunal 

8.	Immigration Judge Fox found there was an appealable decision. At paragraph 14  he stated:

“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”.

9.	The Judge then referred to the decisions of the Court of Justice in Chen and C-34/09 Ruiz Zambrano [2012] 2 WLR 886, [2011] All ER (EC) 491, [2012] QB 265 [ [2011] Imm AR 521  and the Upper Tribunal in; M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC). At paragraph 21 he continued :

“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.”

10.	He then went on to consider whether the appellants were entitled to permanent residency under the European provisions. At paragraph 22 he concluded:

“ 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 

11.	Permission to appeal to the Upper Tribunal has been granted in relation to two issues: 
(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?

12.	Section 82 (1) of the Nationality Immigration and Asylum Act 2002 gives a right of appeal in respect of an immigration decision. Section 82(2) (a) to (h) define what is an immigration decision. None of these are applicable. 

13.	Mr Cox accepted that the respondent’s letter dated 15th August 2011 did not constitute an `immigration decision’ under Section 82 (2). Rather, he argued that there was a right of appeal by virtue of regulation 26(1) of the Immigration (European Economic Area) Regulations 2006. This provides:

 … 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...

14.	From a reading of paragraphs 17 and 21 of the Determination this appears to have been the basis on which the Judge found jurisdictiction.

15.	 The question is whether the terms of the letter cited at [6] above amounts to a decision concerning a person’s entitlement to be issued with a document certifying permanent residence. Mr Cox acknowledged that the terms of the letter only obliquely dealt with the appellant’s entitlement to permanent residence but it should be a read as a response to the request for such status. A purposive approach to regulation 26 should be adopted as to what constitutes an EEA decision as otherwise rights under European law could be ignored.   

Discussion 

16.	The decision of M (Chen parents: Source of Rights) Ivory Coast [2010] UKUT 277 (IAC) concluded that the rights of entry and residence of parents of EU national children identified by the European Court of Justice in the Chen decision are rights derived from the children’s rights as a matter of EU free movement law.  They are therefore EU rights that should be dealt with as such rather than exercises of national discretion dealt with under the Immigration Rules.

17.	 The fact that there may be a lacunae in the national legislation because it had not been brought within the scheme of the EEA Regulations was not decisive. The rights are directly enforceable rights, the scope of which could not be reduced by national legislation and national courts are obliged to recognise and give effect to them.

18.	The decision in M (Chen parents) was not appealed. The appellants’ bundle contains the respondent’s guidance to case workers dated 21st February 2011. It relates to applications by the primary carer or parent of a self-sufficient EEA national child following the judgement in M. It recognised that persons in the appellants’ situation had a directly enforceable EU right to enter and reside in the UK and did not need leave. It was apparent the 2006 Regulations would have to be amended and the Immigration Rules paragraphs 257C to 257E deleted. The guidance issued to caseworkers in the meantime was that they should continue to apply the Immigration Rules to such cases, as happened here.

19.	The 2006 Regulations have now been amended by the Immigration (European Economic Area) (Amendment) Regulations 2012. These came into force subsequent to the decision under appeal. The 2012 amendment introduces a new regulation 15A which covers derived rights of residence. Regulation 15A (2) would cover the appellants’ factual situation if they applied now. It provides for derivative rights of residence to a person who is the primary carer of an EEA national under the age of 18 who is residing in the UK as a self sufficient person and would be unable to remain if their carer was not present. The definition of “EEA decision” in paragraph 2 of the 2006 Regulations has been amended to include the new category of  ‘derivative residence card’ and the appeal rights in regulation 26 amended in relation to the evidence  that must be produced, none of which would have been disputed in this case.

20.	However, applying M (Chen parents) the fact that the respondent chose to treat the right to reside under the Immigration Rules is not decisive.  The right of residence was under EU law, however national practice chose to classify it. Further, the appellants asserted a right of permanent residence under EU law. One reason for doing so was that they did not have the right to work at present. The respondent did not give a formal decision but issued a letter dated 15th August 2011 which by implication refused to confirm the permanent right of residence sought. Such a refusal was a type of decision that came within the EEA Regulations.

21.	In our judgment, the appellants had a right of appeal under regulation 26 at the relevant time. This has now been clarified by the 2012 amendments made to the Regulations. Their substantive rights were directly enforceable EU rights which national courts are obliged to recognise and which national legislation cannot reduce. The respondent’s letter, dated 15th August 2011, amounts to a decision on the appellants’ entitlement to a document certifying permanent residence. This was an “EEA decision“ with a corresponding right of appeal under regulation 26(1). 

Issue 2: Is there a right to permanent residence?

The position of the children 

22.	 No application had been made on behalf of the two children for permanent residence. Mrs O’Brien was not in a position to accept they had permanent residency without taking instructions. Judge Fox at paragraph 22 concluded the respondent had accepted the children had been residing in the UK on a self sufficient basis for at least six years. 

23.	Regulation 15(1)(a) of the 2006 Regulations provides that an EEA national who has resided in accordance with the Regulations for a continuous period of five years acquires the right to reside permanently. 

24.	The children did not move to Northern Ireland but were born here. In the Chen case, the Court of Justice rejected the argument that a person who has never moved from one Member State cannot benefit from Community law. Paragraph 19 states:

“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…”

25.	In Case C-434/09 Shirley McCarthy –v- SSHD [2011] CJEU; [2011] 3 CMLR 10, [2011] Imm AR 586 the Court of Justice examined another case of an Irish national; resident in the United Kingdom. Mrs. McCarthy was a British national who had always lived in the United Kingdom. She was unemployed. She married a Jamaican national who had no permission to be here under the Immigration Rules. She applied for and obtained an Irish passport with a view to her husband remaining under European law. Her application for residence documentation under European law was refused. The Supreme Court referred the following question to the European Court of Justice for a preliminary ruling:

“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?”

26.	The Court of Justice considered whether article 3(1) of Directive 2004/38 or Article 21 of the Treaty was applicable to the situation of a European Union citizen who has never exercised their right of free movement, who has always resided in the Member State of which they are a national and who is also a national of another Member State. The conclusion of the Court was at [57]:
“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”.
27.	The children in the present appeal are European Union citizens as defined in Article 2 of Directive 2004/38/EC (the Citizens’ Directive). They have the nationality of a Member State, namely Ireland. It has previously been accepted that they were exercising a Treaty right by their residence: self sufficiency.

28.	Article 3 defines the beneficiaries of the Citizens’ Directive:

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.

30.	We therefore conclude that they are EU citizens residing in a state other than that of which they are national and fall within the terms of the Directive.  We did not need to examine the decision in Ruiz Zambrano that is concerned with a different problem. There is no suggestion here that either the children or their parents were being required to leave the UK or the EU.

31.	 Judge Fox found they had lived here six years lawfully and this has not been disputed. Article 16 of the Citizens’ Directive provides:

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…

32.	Although no application has yet been made, it appears the children are entitled to permanent residence in the United Kingdom. 

The position of the appellants

33.	 Chapter IV of Directive 2004/38/EC deals with the right of permanent residence. Article 16(2) states :

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…”

34.	This was considered in Chen in relation to the earlier Directive 90/364:

“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 [1987] 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).
36.	Mr. Cox has been unable to refer us to any provision in the Directive or Treaty which would confer the right of permanent residency on the appellants in the circumstances. 

37.	 In Chen the ECJ did not find the parents had a permanent right to reside. Paragraph 45 states “the carer must be in a position to reside with the child in the host Member State for the duration of such residence”. The Court did not say that the residence must be permanent.

38.	 The respondent has reflected this in the drafting of the 2012 amendment to the Regulation 15 of the 2006 Regulations, dealing with permanent rights of residence.

39.	The new 15(1A) states:

“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. 

40.	The notion of a derivative right only exists for so long as there is a need has been reflected in the provisions in relation to EU rights to education. The Court of Justice in its judgment of 23 February 2010 in  Case 480/08  Maria Teixeira v London Borough of Lambeth and the SSHD considered the impact of the child's having reached the age of majority on the parent's right of residence as the person who is the child's primary carer. The Court stated that the right of residence of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority 'unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education'.

41.	There are other indications in the case law of the Court of Justice that a right of permanent residence that is not expressly provided for in the Directives that give effect to Treaty rights is not to be implied.  In the case of C- 83/11 Secretary of State for the Home Department v Islam and others [2012] 5 September the Court of Justice indicated that in the absence of express words in the Directive the subsequent residence rights of “other family members” who had been admitted as such under Article 3 of the Citizen’s Directive fell outside the Directive.

42.	Since the hearing of this appeal, Advocate General Bot has delivered her opinion on a reference from the Upper Tribunal in case C 529/11 Alarape v Secretary of State for the Home Department 15 January 2013.  She has concluded that Article 16 of the Citizens Directive does not afford a right of permanent residence to a non-national parent of a EU national child who was receiving education in a host state, although both had rights to reside under European law to give effect to the child’s right to receive education.  She distinguished between rights of residence afforded under national law where the subject in fact complied with the provisions of EU law and those who did not. If the Court of Justice adopts a similar conclusion that further suggests that these appellants have no such rights.

43.	 We note that we are not asked to consider whether the condition of residence prohibiting either appellant from taking employment is lawful. Nor do we have to consider whether the appellants should at some point in the future be granted permanent residence as a matter of general discretion and or human rights law. Although, the judge at [26] referred to the refusal of a visa as being a disproportionate interference with human rights, we think that this was an unfortunate slip. The case was not concerned with refusal of a visa but the grant of permanent residence; there was no free standing human rights point before the judge as no immigration decision had been made under s.82 NIAA as noted above; no submissions had been advanced to the judge that the EEA decision was in breach of human rights and no reasons were given by the judge for the decision. Human rights are not an issue for determination before us. We note that the applicants will have completed 10 years lawful residence in the United Kingdom.  If their children are granted permanent residence and still require the presence of their parents to give effect to their rights of residence, this may well justify the grant of permanent residence or indefinite leave to remain under national law.

44.	 However, this does not mean that these appellants had the right of permanent residence under the terms of the Citizens Directive or other provisions of EU law which is what the judge determined below. 

Conclusion. 

45.	We find that Immigration Judge Fox was correct in finding that there was an appealable decision giving the Tribunal jurisdiction. 

46.	We find he materially erred in law in concluding that the appellants were entitled to a permanent right of residence on the basis claimed and we conclude that the appellants’ derivative rights do not confer a permanent right of residence. 

47.	We accordingly re-make this appeal by dismissing it.

Francis J. Farrelly
Deputy Upper Tribunal Judge