Tuesday, August 28, 2012

The right to reside for the non-EEA parent of an EU Child

We are working on a number of applications for residence permission for the  non EEEA parent of an EU child resident in the State.

In one particular case, our client is the father and the sole carer of his EU citizen child since the mother returned to home country,  having previously been employed in Ireland.
We submitted an application to the Minister asserting that our client  acquired a derivative right of residence based on his child’s rights under Article 20 of the Treaty of the Functioning of the EU, relying particularly on the Chen judgment, (as the father was working and financially self sufficient while in employment), and also on the case of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08, where the European Court of Justice found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091, a union child’s right to reside and enter education was independent of that child’s parents status, regardless of whether the parent who is a citizen of the union or not, or has ceased to be a migrant worker in the host state. The child’s rights derived directly from the Treaty. A refusal to allow the primary carer parent to reside during the children’s education would deprive the children of their Treaty rights.

On sufficient resources, the Court of Justice indicated as follows;

“in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

The UK position is that Ibrahim and Teixeira parents in the UK are fully entitled to work.  Under the Social Security (Persons from Abroad) Amendment Regulations 2006, they also have a 'right to reside' for the purpose of claiming benefits.   The right to reside based on the Ibrahim/Teixeira cases is now enshrined in the new Immigration (European Economic Area) (Amendment) Regulations 2012 and is not subject to any conditions such as an inability to work or claim benefits.

The Department of Justice have taken a different approach. In the above mentioned case, it has been determined that the Ibrahim and Teixeira cases do apply to our client’s situation and that a right of residence has been established. However, the Minister has granted our client a restricted stamp 3 residence permission (usually issued to dependents), which prohibits our client from working or accessing welfare. As a result, he has lost his job, and is now unable to support himself and his son, and instructs he will have no option but to return to Pakistan with his son.

We believe that the prohibition against work/access to welfare for the sole carer of an EU child who is established in the education systym is at odds with the Ibrahim and Teixera cases, ( both applicants in those cases were welfare dependent), and therefore in breach of EU law. We will keep you updated on developments in this area of EU Free Movement law.

Brophy Solicitors

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