Thursday, September 6, 2012

Referral to Court of Justice concerning the Right of Residence for the Non EEA parent of EU citizen child in Education in a Member State

Case  Study : Ms Olaitan Ajoke Alarape (the First Appellant) and Olukayode Azeez Tijani (the Second Appellant) –vs— The Secretary of State for the Home Department (respondent) and Aire Centre (third-party intervener)

We are waiting with interest to see the Court of Justice’s response from the UK referral in the above case.  The outcome could be of great assistance in clarifying and expanding upon the rights of residence established in the seminal cases of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08.

In particular, the right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation. It is currently uncertain whether such a right of residence does or does not count towards the five years required for permanent residence. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.”

The facts of the Alarape case are as follows;

The Appellants were mother and son, and Nigerian nationals. They arrived in the UK illegally in 2001. In 2003, the first appellant married Mr. Salama, a French national, so the first and second appellants were given permission to reside until 2009. The couple then divorced in 2010.  Subsequently, the appellants applied for permission to reside based on the fact that Mr. Salama was exercising his EU Treaty Rights by working for 5 years. 

The second appellant is a student who intends to commence a course in PhD studies in Edinburgh.

The First Tier Tribunal (FTT) found that Mr Salama was not exercising his EU Treaty Rights because he had only produce evidence of employment from 2004-2006. The appellants therefore received a negative decision but they received permission to appeal

The findings made by the Upper Tribunal were as follows;

-          Mr. Salama hadn’t been exercising EU Treaty Rights, so there’s no error in law there. They don’t qualify for any of the protections of non-EU family members in the event of a divorce because he hadn’t been working.

-          Even though the son is over 21 and isn’t the child, but the step-child of Mr. Salama, his rights are recognized under Article 12 to have his education.

-          The FTT is unable to determine whether or not the first appellant is his “primary carer,” because there is no clear definition of primary carer. They enjoy a close relationship and he is financially dependent on his mother, but he lives in another city, is now 25, is healthy and able-bodied, and has entered into the labour market on his own before.

Queries of law referred to the Court of Justice:

-          For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

-          In order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

-          In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

-          In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

-          Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence”) and being issued with a residence card under Article 19 of the same Directive?

Brophy Solicitors

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