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Court of Justice rules on source of income for Derivative Residence applications

October 2019 - Immigration. Legal Developments by Richmond Chambers.

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On 2 October 2019, the Court of Justice delivered its judgment in Bajratari v Secretary of State for the Home Department (Directive 2004/38/EC) Case C-93/18 which concerns Chen applications and the source of funds for self-sufficiency. 

In a Chen (C-200/02) Derivative Residence application, an applicant can derive a right of residence where they are the primary carer of an EEA national child, who resides in the UK as a self-sufficient person and would be unable to remain in the UK if the applicant were to leave the UK for an indefinite period.  The UK has incorporated this into Regulation 16(2) of the Immigration (EEA) Regulations 2016.

The Court of Justice ruled that there are no requirements in relation to the source of income to prove self-sufficiency, and that income derived from a third-country national parent working in the host member state, with or without the right to work, cannot be excluded.

Facts of the case and questions referred 

The Applicant, Mrs Bajratari, was a non-EEA national (Albanian) and married to another non-EEA national (Albanian) who held a Residence card by virtue of his previous relationship, which had ended.   The Residence Card was not revoked. 

Two of the couple’s three children obtained a certificate of Irish nationality.  Mr Bajratari worked at times. At least since the expiry of his Residence Card, he worked illegally.  His income was the only source of funds available to the family. Mr Bajratari paid tax and there was no evidence of reliance on social security assistance by the family.

Mrs Bajratari applied for a residence card as the primary carer of her child, maintaining that a refusal of a residence permit would deprive her child of the enjoyment of his rights as a Union citizen.  This was a Chen application.

Procedural history

The application was refused. On 8 June 2015, the First-tier Tribunal dismissed Mrs Bajratari’s appeal.  On 6 October 2016, the Upper Tribunal dismissed Mrs Bajratari’s appeal. 

She lodged an application for permission to appeal against the judgment of the Upper Tribunal (Immigration and Asylum Chamber) to the Court of Appeal in Northern Ireland (United Kingdom).

The referring court noted that the CJEU has previously held that: 

“the requirement imposed by Article 7(1)(b) of Directive 2004/38, according to which a Union citizen must have sufficient resources, is satisfied when those resources are at the disposal of that citizen, and that there is no requirement as to the origin of those resources (see, to that effect, judgments of 19 October 2004, Zhu and Chen, C-200/02, EU:C:2004:639, paragraph 30, and of 10 October 2013, Alokpa and Moudoulou, C-86/12, EU:C:2013:645, paragraph 27).”

Nevertheless, the referring court pointed out that the CJEU did not specifically rule on whether income deriving from employment which is unlawful under national law should be taken into account.

Questions Referred

The Court of Appeal in Northern Ireland referred the following questions to the Court of Justice for a preliminary ruling:

(1) Can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources under Article 7(1)(b) of [Directive 2004/38/EC]?

(2) If “yes”, can Article 7(1)(b) [of that directive] be satisfied where the employment is deemed precarious solely by reason of its unlawful character?

Consideration of the questions referred

The right to reside within the territory of the Member States which is conferred on every citizen of the Union by Article 21(1) is ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ and the requirements in Article 7(1) are such relevant conditions.

In relation to sufficient resources,

”the Court has previously held that
 EU law does not, however, lay down any requirement whatsoever as to their origin, since they may be provided, inter alia, by a third-country national who is a parent of the Union citizens who are minors (judgment of 13 September 2016, Rendón Marín, C-165/14 EU:C:2016:675, paragraph 48 and the case-law cited)” (§30)

The availability of the resources is more important than the source. That resources are derived from income obtained by a third-Country national parent from employment in the host state does not mean they cannot be relied upon. (Singh and Others, C-218/14, EU:C:2015:476, paragraph 76).

The CJEU noted that there is no requirement in Article 7(1)(b) of Directive 2004/38 that only resources derived from lawful employment of a parent  be taken into consideration for the purposes of that provision (§33). Rather, the requirement is simply that the Union citizen child has such resources at their disposal (§34). 

The approach taken by the CJEU was to respect the right to freedom of movement ‘as a fundamental principle of EU law’ and thus construe the requirements “in compliance with the limits imposed by EU law and the principle of proportionality (see, to that effect, judgment of 19 September 2013, Brey, C-140/12, EU:C:2013:565, paragraph 70 and the case-law cited).” (§35)

The Court recognised that where resources are available due to illegal work “the risk of a loss of sufficient resources and of that Union citizen minor becoming a burden on the social assistance system is greater.” (§37)   

The CJEU ruled that, while Member States may wish to exclude illegal income due to the risk of a Union citizen minor becoming a burden on the social assistance system being greater, that an interpretation of the condition of sufficient resources to exclude illegally obtained income would introduce a further requirement relating to the source of funds, constituting a disproportionate interference with the EEA national minor’s fundamental rights of free movement under Article 21 TFEU, such that it is not necessary for the achievement of the objective pursued (§42). 

The Court of Justice emphasised that illegal work cannot be excluded at §46:

“A national measure allowing the authorities of the Member State in question to refuse a Union citizen minor a right of residence on the ground that the resources at his disposal, for the purposes of Article 7(1)(b) of Directive 2004/38, are derived from employment occupied by a third-State national parent without a residence card and work permit, despite the fact that those resources have allowed that Union citizen to support himself and his family members for the past 10 years without needing to rely on the social assistance system of that Member State, goes manifestly beyond what is necessary in order to protect the public finances of that Member State.”

The CJEU rejected the UK Government’s arguments on grounds of public policy (§49-51), finding that public policy must always involve a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and must be interpreted strictly, citing CS, C-304/14, EU:C:2016:674.

For those reasons, the Court ruled:

Article 7(1)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit.  (§54)

Comment

This case will be very important for many individuals considering Chen applications.  

It means that the work of a parent may be relied upon to prove sufficient resources, whether or not the parent has permission to work in the UK.  

While this is a good thing, it is important to remember that self-sufficiency under Article 7(1)(b) requires sufficient resources as well as comprehensive health insurance.  On the facts of Bajratari, health insurance was not a contested issue. 

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