Mr cash,
Like my fellow moderator Checkmate and the rest of the board, I sympathise with your situation in respect of your son’s illness. In regards to comments about a lack of a definitive response do note that many participants here including the moderators are volunteers and are not as far as I know ‘experts’ in immigration law particularly on complex situations pertaining to Community Law. Note further that your case juxtaposes aspects of UK Immigration and Nationality law as well as regulations pertaining to the medical treatment of visitors on the NHS.
My interpretation of your query is that you:
1. Intend for your son to reside in the UK to undertake medical treatment as recommended by a consultant registered with the General Medical Council as appropriate.
2. By default for her sister to remain in the UK – as an Irish Citizen she has the right to live in the UK under Community (EU) law
3. As per the Chen ruling for you and the mother to reside in the UK as the primary carers of an EU national residing in the UK under Community law.
4. Whether to pursue an application for the HSMP scheme pursuant to 3 not materializing.
The Chen ruling delivered as a binding judgment (AFAIK it cannot be appealed against) by the European Court of Justice on 19 October 2004 states:
In circumstances like those of the main proceedings, Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.
it thus follows that:
1. Your daughter as an EU (Irish) national, in so far as meeting the requirements to have adequate medical insurance/ cover and resources to not be a charge on public funds has the right to reside in another member state (UK) for an indefinite period. It does not matter as to the source of relevant resources. I presume your daughter has an Irish passport. Note too that in the Chen ruling the child had no other nationality – I recall Nigeria does not allow dual nationality.
2. You do not have a right of residence in the UK as per EU law on the right of dependents (spouses/ children) or relatives in the ascending line of an EU national exercising treaty rights – currently your daughter is your dependent not the other way round.
3. However the right of your daughter to remain in the UK is ineffective and thus contrary to EU law if the primary carer is not allowed to remain in the UK.
4. Consequently your right of residence in the UK is based on the need to ensure your daughter can exercise her right of residence in the UK.
Some issues to consider
1. The Chen ruling applies to one parent/ carer – the ECJ does not mention two carers/ parents (as the father was not included in the initial residence application) so I am not sure how this helps both parents stay in the UK. I am sure case law will evolve from this in the near future in particular those situations where the carer is not a parent and/or has long term limited leave to remain in the UK.
2. The right of the carer to reside in the UK in line with the EU national does not limit the Home Office from imposing any other conditions pertaining to such stay – the most obvious ones are ‘no recourse to public funds’ and ‘no recourse to employment’
3. The resource requirement and the age of the child in question means that you must have substantial assets to allow subsistence to when the child can be economically active – in the UK you cannot formally enter the job market (some exclusions apply but they are not really relevant here) till you are 16. Justice and cash remain a standard feature of the legal system.
4. Your son’s residence in the UK by default of the Chen ruling will be indirect i.e. you need to apply for residence via the Chen ruling then apply for your son to remain in the UK under the immigration rules based on your residence.
5. The legal advice you received pertaining to your son’s deportation is factually incorrect – any person who is not a British Citizen or otherwise has no right of abode can be deported. Deportation is primarily based on serious criminal offences e.g. murder and matters pertaining to vital national interests/ security e.g. treason. By default your son’s age means that this is moot.
6. As per the British Nationality Act 1981, your son is not a British Citizen despite being born in the UK and thus requires leave to enter or remain in the UK as applicable. However where he had been born in the UK and stayed/ remained there for the initial 10 years of his life (max 90 days outside the UK) then he would be registered as a British Citizen. There are provisions under the Nationality Acts and regulations to grant British Citizenship to British Born minors at age 5 but these apply to reducing stateless status as well as to any person the Home Secretary deems fit but there would have to be exceptional reasons e.g. exemplary military service under the crown such as getting a victoria cross.
7. Your son’s entry into the UK thus falls under the immigration rules – currently those pertaining to visitors. IMHO the issue of treatment under the NHS is moot because there is a clause/operational policy stating that a UK born child who is not a British Citizen or settled as the case may be is not to be denied leave to enter (and presumably remain) the UK on medical grounds.
8. Medical insurance policies exclude pre-existing conditions and have caps on benefits particularly pertaining to life threatening illnesses requiring extensive diagnostics particularly scans and lab tests.
Summary
The Chen ruling enables some of your intentions to materialize. However IMHO you need to then follow any right of residence under such with an application to an immigration category giving you the right to be employed/ self employed in the UK unless your financial position is such that this is not required. It appears that the HSMP scheme is appropriate – however based on your financial position i.e. net worth etc there may be other routes that are appropriate. IMHO the compassionate circumstances route you intend to follow will be lengthy and not necessarily lead to settlement – there are already discretionary policies granting limited leave to remain for quite long periods (I know a 3 years case) in the UK for parents of minors undergoing medical treatment – AFAIK such leave is subject to a condition preventing employment and recourse to public funds. In any case obtaining leave to enter/ remain in the UK under the HSMP or any other category leading to settlement is helpful as it will enable you to register your son as a British Citizen once you acquire Indefinite Leave To Remain in the UK - based on your circumstances this would be after 4 years in employment/self employment based categories.
As a by the by IMHO the issue of third country (non EU) nationals who are parents of an EU national child flocking to the UK or other member states is unlikley due to:
1. The long term resource and medical insurance requirements - the people whom legal opinion expects as to most likely exercise the Chen ruling (and most likley move to the UK) are failed asylum seekers in Eire a significant proportion of whom are on state support.
2. By virtue of 1, I anticipate the Eire government (under friendly pressure from other EU member states) and pursuant to the recent amendment to the Irish Constitution removing the automatic citizenship by birth in Eire and Northern Ireland, to implement an amnesty of some sort and eliminate the need to move to another member state.
3. By virtue of the Chen ruling for various member states to amend as appropriate social security legislation pertaining to EU nationals in a different member state - I don't expect major changes given that the Chen ruling is in regards to non economically active EU nationals.
I trust that you find a long term solution on all these issues. Likewise I wish you and your family all the best in regards to your son's illness. God bless.
Kayalami
