UK Position on the Free Movement derivative rights of Non EEA parents of EU citizen minor children

In Ireland, the legal position of Non EEA parents of EU citizens and their right to reside/work/access welfare is still quite unclear following the Court of Justice judgments in Ibrahim, Teixeira and Chen. No guidelines have been published, nor statutory amendments made to the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended).   In the UK however the position has been recently clarified, and it is of helpful assistance for us to review these changes in the UK domestic law.

In the UK, the directive is transposed into the Immigration (European Economic Area) Regulations 2006^, as amended by SI 2009/1117  and amended by SI 2011/1247.Under Regulation 15A, a person who is not entitled to reside in the UK as a result of any other provision of the but who, nevertheless, satisfies the criteria in the sub-paragraph of Article 15A of the Amendment Regulation is entitled to a derivative right to reside in the UK for as long as he/she satisfies the relevant criteria.

CHEN CASES

Following the Chen case the UK Border Agency published guidelines for the treatment of the primary carer of an EEA national child who is exercising free movement rights in the UK, and the dependent of such a primary carer.  In Chen, it was held that by virtue of the terms of Directive 2004/38/EC (“the Directive”) a child will have an right of residence in a member state where that child:

(a) Is an EEA national,

(b) Holds sufficient resources to prevent them (and their primary carer) becoming a burden on the social assistance system of the host member state, and

(c) Holds comprehensive sickness insurance.

The guidelines also direct that such a child is entitled to be accompanied by his or her primary carer, and therefore that the primary carer of such a child will have a right of residence in the host member state until the child’s eighteenth birthday where to refuse such a right would prevent the child from continuing to reside in the UK. Dependents of primary careers who have a derivative right of residence on this basis also derive a right of residence in the UK where requiring those dependents to leave the UK would have the effect of preventing the primary carer from residing in the UK.  This right of residence is not a Free Movement right but is a „derivative right‟. This means that the recognition of this right by the UK is not equal to rights under the Directive

Primary carers with a right to reside on the Chen  basis are, since 16th July 2012, able to work in the United Kingdom regardless of whether or not documentation has been issued to them by UKBA in that capacity.

In order to establish a derivative right to reside the primary carer must also show that the child upon whom they are claiming a derivative right would be unable to continue to reside in the UK should the primary carer be forced to leave. It is considered that any child under the age of 18 would normally require the presence and care of the primary carer (where no other carer is available) in order to continue to reside in the UK.

IBRAHIM AND TEIXEIRA CASES

The UK Border agency also published guidelines implementing the Judgments in Ibrahim and Teixeira.

In the cases of Ibrahim and Teixeira, the ECJ ruled that, by virtue of Article 10 of Regulation 492/2011 (i) the children of an EU citizen who works or has worked in the host Member State (who are in education in that State), and (ii) the primary carer of those children, can claim a right of residence in that State. UKBA has also decided that dependent children of such primary carers should also qualify for a right of residence where failure to give such a right would have the effect of preventing that primary carer from residing in the UK.

Children of EEA nationals may qualify for a right of residence under regulation 15A (3) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A (3) are that the child:

(a) Is the child of an EEA national (“the EEA national parent”)

(b) resided in the UK at a time when the EEA national parent was residing in the UK as a worker, and

(c) is in education in the UK and was in education there at a time when the EEA national parent was in the UK.

A child of an EEA national who has worked in the UK, and who was in the UK while that child was in education in the UK, will therefore be entitled to a right of residence to allow them to complete their education should the EEA national either leave the UK, or no longer have a right to reside under the Regulations.

It is not necessary for the EEA national parent to have been a worker at a time when the child was in education in order for the child to benefit from this provision. The child must only have been residing in the UK at a time when the EEA national was a worker, and must have been in education at a time when the EEA national was present in the UK.

 A person who meets the definition of primary carer as set out in regulation 15A(7) may apply for a derivative residence card confirming a right of residence under regulation 15A(4) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A(4) are that:

a) The applicant is the primary carer of a person who meets the criteria set out in category (A) above; and

b) The child would be unable to continue to be educated in the UK if the primary carer were required to leave.

Although UK legislation is silent about whether these categories of individuals can work, it is widely recognized now that they can, as there are no restrictions provided for in the Regulations on those who fall within them from working. Previous legislation covering Chen parents (paragraph 257C of the Immigration Rules) prohibited them from working.

However the UK Border Guidelines stipulate as follows;

“A person who has a derivative right of residence under new regulation 15A is not subject to any restriction on taking employment in the UK. Possession of a derivative residence card evidences the fact that the holder had a derivative right at the time at which the card was issued, but only confers a right to work for as long as the holder continues to enjoy the underlying right to reside.”

Brophy Solicitors

12.12.12 

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

28.08.12