Post
by howlong » Fri Nov 18, 2011 1:52 pm
sorry this is too long..couldn't find the link
Before
UPPER TRIBUNAL JUDGE GLEESON
UPPER TRIBUNAL JUDGE CRAIG
Between
MISS IRINA KURAN
MISS ALEXANDRA KURAN
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Arkhurst, instructed by Arlington Crown, Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
The first appellant is a citizen of the Ukraine, and is the mother of the second appellant, who was born in the United Kingdom in November 2008 and is almost three years old. The second appellant’s father is a Roumanian citizen and she takes her nationality from him. She is therefore also a Roumanian citizen and an EEA national. Her citizenship of the EU is her primary nationality, as set out in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09.
The Secretary of State proposed to remove both appellants to Ukraine, the mother’s country of nationality. There was no evidence about the second appellant’s ability to enter the Ukraine, of which she is not a national, if her mother is returned there. The relationship between the first appellant and the second appellant’s father in the United Kingdom has broken down and, at present, he does not see the second appellant, by his own choice.
The appellants have been granted permission to appeal against the First-tier Tribunal determination (Immigration Judge Callender Smith) dismissing their appeals against the respondent’s decision to refuse the second appellant a registration certificate confirming that she is an EEA national exercising Treaty rights in the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2006; and the first appellant a Residence Card as her family member.
The respondent did not dispute that the appellants possessed health insurance at the appropriate level for an EEA Regulations self-sufficiency application. However, the financial element of self-sufficiency was disputed, since the evidence was that the second appellant’s self-sufficiency relied on the economic activity of the first appellant, her mother. The Immigration Judge did not consider that the second appellant’s dependence on her mother’s income for her self-sufficiency met the requirement of the Regulations and of the underlying Directive.
Permission to appeal was granted by Immigration Judge Blandy, based on arguments under Chen and others (free movement of persons) [2004] EUECJ C-200/02 and Zambrano. Unfortunately, the decision of this Tribunal in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) was not cited either to the First-tier Tribunal or in the grounds of appeal.
In that decision, Blake P said this:
“35. In the present case, [the EEA citizen child] C has a right of entry simply by virtue of her EU nationality. On arrival, she can enter for three months irrespective of health insurance or other issues relevant to a longer stay (see Article 6 of the Citizens Directive). In fact, as she will be joining the household of a British Citizen with well paid employment and has bupa health insurance she could demonstrate both conditions that the child in Chen could not, as does her mother M. It has never been suggested that C did not have a right of entry in the present case. It is equally clear as the Immigration Judge found that C's right of residence in EU law is dependent on her mother being admitted to the United Kingdom as her mother is her primary carer. Thus the issue that led to the claim being rejected in W (China) does not arise in the present case. The child is self-sufficient and has a right of entry.”
The decision of the ECJ in Zambrano clarified matters further:
“40 Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 27, and Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraph 21). …
41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43).
42 In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).
43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45 Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
Application of Zambrano and MM in this appeal
The second appellant is an EEA national, which is her fundamental status. She is Roumanian. This appeal turns on her legal position under the Regulations; that of her mother, the first appellant, in practice depends on the decision made on the second appellant’s right to a registration certificate as a self-sufficient EEA citizen exercising her right of free movement in the United Kingdom, where she was born.
As an EEA national the second appellant has the right to the genuine enjoyment of the substance of the rights attaching to the status of EU citizen. Following MM, her EEA rights include the right to reside in any state in the Union, subject to self-sufficiency or other Treaty activity, a right which she cannot exercise unless her mother, who is her primary carer, is there with her and is able to work and support them both.
At the hearing, Ms Holmes agreed with us that the Immigration Judge had erred in law in regarding that as an impermissible circular argument. She also agreed that the second appellant was self-sufficient in EEA Regulations terms and thus entitled to the registration certificate she had sought, and that her mother was entitled to a Residence Card as her family member and primary carer.
The appeals of both appellants are allowed, by consent.
DECISION
The making of the previous decision involved the making of an error of law.
We therefore set aside the previous decision and remake it.
The appeals of both appellants are allowed.
Date: 23 September 2011 Signed
Senior Immigration Judge Gleeson
Judge of the Upper Tribunal
