COUNSEL: Miss F. Webber, instructed by Ms Janie Batchford, for Liu and Wang.
Mr M. Chatwin, instructed by Fernandez Vaz, for Ahmed and Others.
Miss N. Rogers, instructed by Irving & Co, for Mouloungui and Mouloungui.
Mr C. Vajda Q.C. and Ms M. Demetriou, instructed by Treasury Solicitors, appeared for the respondent.

JUDGES: Buxton, Moses and Lawrence Collins L.JJ.

DATE: October 25, 2007

HEADNOTE: Citizenship; EC law; Foreign nationals; Member States; Relatives; Rights of entry and residence

EU citizenship—Arts 17 and 18 EC—scope—non-right of residence of non EU national parents of children born in the EU—conditions under Art.18 EC— Directive 2004/38—requirement of comprehensive sickness insurance and sufficient resources right of residence of guardian or carer existing where right of residence of minor only effectively asserted with their presence and support—Directive 2004/38 requirements as condition precedent to existence of Art.18 EC right—precarious employment not providing “sufficient resources”—no obligation on Member States to adjust law to make such resources available to EU citizen—conditions not satisfied in case at issue—parents unable to rely on rights of child where absence of resources preventing such rights coming into existence—right of residence for educational purposes—Art.7(c) of Directive 2004/38—only applying to vocational training—subject to resources requirement.

Appeal from the Asylum and Immigration Tribunal (AIT).

The appeals arose out of the situation of children who could claim the nationality of an EU Member State, but whose parents were not EU nationals (the children concerned). The parents claimed a right to residence in the United Kingdom by virtue of a family connection with a child who was an EU citizen. In the case of two of the children concerned, the appellant parent(s) had limited leave to remain in the United Kingdom at the time the child was born, and that leave had been extended by virtue of s.3c of the Immigration Act 1971 until the conclusion of the appeal proceedings. In the third case, the appellant parent had unsuccessfully claimed asylum and was in the United Kingdom without permission.

Held: Scope of Articles 17 and 18 EC

Article 17 EC created a citizenship of the Union, enjoyed by everyone holding the nationality of a Member State, as was the case with the children concerned. [*694] Article 18 then provided that every citizen of the Union should have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. Those limitations and conditions were to be found, in particular, in Directive 2004/38They provided that persons asserting a right of residence as EU nationals (rather than on the basis of being EU migrant workers) had to demonstrate that they and their “family members” had (i) comprehensive sickness insurance in the host Member State; and (ii) “sufficient resources” to avoid becoming a burden on the social assistance system of the host Member State. [10]-[11], [33]-[34]

Limitations on rights of free movement and residence

The Court of Appeal in W (China) had concluded that in the unusual case of a minor EU citizen, unable to cope for himself without parental or guardian support, the Community rules led to the following propositions:

i) The right of residence of a minor could only be effectively asserted with the presence and support of a carer or guardian, and if the requirements of the Directives were fulfilled, it created a right for the parent to reside with the child.

ii) All of the minor EU citizen and his non-EU citizen carers had to fulfil the Directive requirements of (a) sickness insurance; (b) sufficiency of means.

iii) Those conditions were pre-conditions to the existence of the Art.18 EC right in any given case, and thus the right did not exist until those conditions were fulfilled.

iv) The pre-condition of sufficiency of means could not be fulfilled by funds derived from employment that was precarious because it was unlawful.

v) The Member State was under no obligation to adjust its domestic law in order to make available to the EU citizen resources that would enable him to fulfil the pre-condition to the existence of the Art.18 right. [12], [33]-[34]

Chen (C-200/02) [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48; W (China) [2006] EWCA Civ 1494; [2007] 1 W.L.R. 1514; [2007] 1 C.M.L.R. 17, followed .

Pre-conditions for existence of Article 18 right not satisfied

(a) All of those propositions were part of the Court’s ratio and applicable to the case at issue. None of the children concerned had access to private health insurance, save in one case pending the completion of the proceedings. That was in principle fatal to their claims. Furthermore, the income of the carers concerned was precarious. Although some of them had been working lawfully, in contrast to the situation in W (China), the permission to work had originally been limited and had now expired. They continued to be allowed to work until the end of the proceedings. The temporary income that had resulted could not possibly be characterised as sufficient resources to support an application for residence after the proceedings had been resolved. [13]-[15] & [33]-[34] [*695]

(b) The Art.18 EC right was not absolute. It depended for its existence on fulfilment of the conditions stipulated by the relevant Directives. The parents in question, who were not EU citizens, had no right in EU law to work in the United Kingdom unless that right was derived from their EU citizen children’s right to reside here. But the children did not have that right at all without the contribution of resources from the parent. The parents’ immigration position was not, therefore, being used as a basis for taking away from an EU citizen a right that would otherwise exist; but as a factual reason why the resources requirement was not fulfilled. [17]-[21] & [33]-[34]

Baumbast (C-413/99) [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23; Carpenter (C-60/00) [2002] E.C.R. I-6279; [2002] 2 C.M.L.R. 64, distinguished .

Residence for educational purposes

(a) The direct wording in Art.7(c) of Directive 2004/38 recognised as a separate basis for a right of residence of an EU citizen the fact that the citizen was enrolled in an educational establishment. However, Art.7(c) applied only to further and vocational training, and not to children of school age. Furthermore, Art.7(c) was still subject to the resources requirement. [25], [33]-[34]

(b) In Baumbast, by a benevolent application of the rules relating to migrant workers, the child of such a worker, established in education when she accompanied her father to the United Kingdom, could remain here, and her (non-EU) mother with her, to continue her education even when her father had left the family. There, the child’s right to remain in education stemmed from the already existing EU right of her father. The same argument could not be used to create a right for the parent of an EU citizen who until that right was created had no right of residence in the United Kingdom at all. [26] & [33]-[34]

Baumbast (C-413/99) [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23, distinguished .

Judgment

Buxton L.J.:

1 The applicants have thus far been referred to anonymously, under the court policy of anonymising all immigration cases at their inception, in case it becomes apparent that publicity might be harmful to the applicants and their connections, whether or not they are returned to their country of origin. At the opening of the appeal the court indicated that in pursuit of the leading principle of openness it would wish to give judgment using the appellants’ proper names, unless significant reasons were advanced for its not doing so. All counsel, after taking instructions, were good enough to indicate that there was no objection to their clients being named.

Background

2 All of these conjoined appeals explore some details arising from the jurisprudence of the European Court of Justice (ECJ) and of this court in relation to the rights of movement and residence of citizens of the European Union that are conferred by Art.18 EC, and the associated rights of certain members of their families that are conferred by Directive 90/364, now replaced by Directive 2004/36None of the adult appellants are citizens of the Union. All of them claim a right to residence in the United Kingdom by virtue of a family connection with a child who is a citizen of the Union.

3 The appellant Wang is the mother of the appellant Liu, who is now three years old, and their cases will be considered together. In the Ahmed appeal, the three appellants are Mr and Mrs Ahmed and their daughter aged now six years. In the Mouloungui appeal the appellants are Grace Mouloungui (Grace), aged eleven years, and her father Mr Mouloungui.

4 Wang and Liu and Ahmed are Irish cases. In each case the parent, a non-EU citizen resident in the United Kingdom on a short-term basis, arranged to travel to the Republic of Ireland in order to give birth to the child with whom this case is concerned. There has been no attempt to suggest that the birth took place in the Republic for any other reason than to take advantage of the nationality rules of that country, which under the jus soli then (but no longer) part of its law conferred Irish nationality, and thus citizenship of the Union, on any child, of whatever origin or parentage, who was born there. It might have been thought that for the parents who had made that arrangement then to seek for themselves the rights of citizen of the Union on the back of the right that they had created for their child engaged the principle of the abus de droit that is part of Community jurisprudence. However, the European Court of Justice in [34] to [40] of its judgment in Chen v Secretary of State for the Home Department (C-200/02) [2004] E.C.R. I-9925; [2004] 3 C.M.L.R. 48 [*697] rejected any such argument; and we therefore treat these children as citizens of the Union like any others; and in the case of their parents ignore their role in creating that citizenship.

5 Mouloungui has a different background. Grace was born in 1996 as a national of the French Republic; I understand that was because her mother is a French national, and although the family seems to have been principally located in the Democratic Republic of the Congo (DRC), Grace was born in a dependent territory of the French Republic. Mr Mouloungui, a citizen of the DRC, came to this country in 2001 and was shortly thereafter followed by Grace. Mr Mouloungui has been in this country without permission since he exhausted his rights of appeal in relation to his asylum claim in, I think, 2003. He now claims the right to remain here permanently on the basis of Grace’s citizenship of the union.

The facts in some further detail

Liu and Wang

6 Miss Wang, a citizen of the People’s Republic of China, came to this country, aged 16, in 2002. She unsuccessfully claimed asylum, but as an unaccompanied minor was given discretionary leave to remain until her 18th birthday on October 12, 2004. As an incident of her discretionary leave to remain she was permitted to work, and did so in a restaurant. There she appears to have met Mr M.K. Liu, who had been in this country without leave, and had been working here illegally, apparently since 1995. Miss Wang travelled to the Irish Republic when pregnant by M.K. Liu, and gave birth to the appellant Liu there on September 18, 2004. Thereafter, on February 7, 2005, she married M.K. Liu. Before her discretionary leave to remain expired, Miss Wang applied for an extension. The Secretary of State’s refusal of such leave was challenged in these proceedings on the basis of the EU citizenship of Liu. Wang’s permission has been extended to the end of the proceedings by s.3C of the Immigration Act 1971, and she has permission to work because of that extension, but not otherwise.

Ahmed

7 Mr Ahmed was given leave to enter the United Kingdom as a student in 1998, and that leave was successively extended until December 2005. He married Mrs Ahmed in Bangladesh in February 2000, and she was given leave to enter as his spouse in July 2000. Their daughter was born in Dublin in November 2001. Both parents worked in this country in conformity with the terms of their respective conditions to remain. In July 2005, that is some six months before those permissions expired, they applied for permission to remain, this time on a permanent basis, on this occasion as the parents and primary carers of their daughter, an EU citizen. These proceedings spring from those applications. The parents now have permission to remain in the United Kingdom, and permission to work here, solely by virtue of s.3C, a permission that will expire on the conclusion of this appeal. [*698] Mouloungui

8 The facts of this case have largely been set out above. Because of the particular argument that is raised in this appeal, it is necessary to add that since her arrival here in 2001, Grace has been in (compulsory) full-time education, and receives excellent reports from her school.

The jurisprudence

9 The jurisprudence that has to be applied to these applications was set out by the Court of Appeal, in terms that bind this court, in W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494; [2007] 1 W.L.R. 1514; [2007] 1 C.M.L.R. 17. That authority causes significant difficulties for the appellants. It may in principle be possible, under the domestic rules of precedent, to undermine a binding authority by showing that it is clearly incompatible with the authority of the ECJ (see [171] of the judgment of the Master of the Rolls in R. (on the application of Countryside Alliance) v Attorney General [2006] EWCA Civ 817; [2007] Q.B. 305). No such sustained argument was made to us, though one of the arguments, referred to below, could not be maintained unless W (China) was wrongly decided. Rather, the main thrust of the submissions was that W (China) was distinguishable.

10 These appeals turn, as did W (China) and Chen that it applied, on Art.18 EC, read with the requirements of Art.1(1) of Directive 90/364 and Art.7 of Directive 2004/38. Article 17 EC creates a citizenship of the Union, enjoyed by everyone holding the nationality of a Member State, as is the case with Grace, Liu and the infant Ahmed. Article 18 then provides that:

“Every citizen of the Union should have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”.

11 Those limitations and conditions are to be found in the Directives, and more particularly in Directive 2004/38. They provide that persons asserting a right of residence as EU nationals (rather than on the basis of being EU migrant workers) have to demonstrate that they and their “family members” have (i) comprehensive sickness insurance in the host member state; and (ii) “sufficient resources” to avoid becoming a burden on the social assistance system of the host member state.

12 The Court of Appeal held in W (China) that in the unusual case of a minor EU citizen, unable to cope for himself without parental or guardian support, those Community rules led to the following propositions:

i) Applying [45] of Chen, the right of residence of a minor could only be effectively asserted with the presence and support of a carer or guardian, and that, if the requirements of the Directives are fulfilled, creates a right for the parent to reside with the child, (see W (China) at [6]).

ii) All of the minor EU citizen and his non-EU citizen carers have to fulfil the Directive requirements of (a) sickness insurance; (b) sufficiency of means: W (China) at [8]. [*699]

iii) Those conditions are pre-conditions to the existence of the Art.18 right in any given case, and thus the right does not exist until those conditions are fulfilled: (W (China) at [16]).

iv) The pre-condition of sufficiency of means cannot be fulfilled by funds derived from employment that is precarious because it is unlawful: (W (China) at [14]).

v) The member state is under no obligation to adjust its domestic law in order to make available to the EU citizen resources that will enable him to fulfil the pre-condition to the existence of the Art.18 right: (W (China) at [16]).

13 Both Miss Webber, who argued the main part of the appeal for the appellants, and Mr Vajda Q.C. (the former with a good deal more enthusiasm than the latter) were inclined to say that either because W (China) concerned a carer who was always unlawfully in this country, and his case failed on that ground; or because W (China) had been decided on the issue of health insurance; all of the foregoing propositions (except that in sub-para.12(iv)) were strictly speaking obiter. I do not agree. The structure of the judgment in W (China) makes it quite clear that the unlawfulness of the carer’s presence in this country, and the possession of health insurance, were relevant because of the analysis of the nature of the EU’s national’s right to reside. That analysis was accordingly an essential part of the reasoning of the court, and all of the propositions set out above are therefore part of the Court of Appeal’s ratio. The jurisprudence applied

14 Neither Grace nor Lui have access to private health insurance. Mr Ahmed’s daughter, it can be presumed in her favour, has such access through her father’s s.3C employment, but that will cease on completion of these proceedings. That in principle is fatal to their claims, as it was fatal in W (China). However, it is further argued that the resources requirement can be fulfilled from employment taken by various of the adults involved, and sickness insurance would also therefore be financed from that income. If that argument were well-founded, I would be prepared to accept that it could at least potentially fill the gap left by the absence of health insurance. However, the argument is not well-founded.

15 It was principally argued that this case differed from W (China). In that case all of the adults’ presence in the United Kingdom had been unlawful, hence they were not permitted to work, so such income as they had was precarious. Here, all of Wang, Mr Ahmed and Mrs Ahmed had been and still were working lawfully. But that permission to work was originally granted in relation to limited permissions to remain that had now expired; and the present condition only existed because of, and is only valid until the end of, the present proceedings. The temporary income that has resulted cannot possibly be characterised as sufficient resources to support an application for residence after the present proceedings have been resolved, which is what the applicants seek in each case. And that objection has nothing to do with whether the Directives require the self-sufficiency to be fulfilled throughout the foreseen period of residence (which in view of the ages of the children may be very lengthy). The present ability to work, on which the appellants rely, does not [*700] even enable the children and their parents to commence the period of residency that they seek, because that ability expires at the start of that period of residency.

16 Three further aspects of this issue need to be addressed, principally advanced in clear submissions by Miss Rogers. First, in placing a limit on the parents’ right to work, and in not continuing that right once the present s.3C right expired, the Secretary of State was enforcing domestic immigration law. It was submitted that that was not a permissible limitation to place upon, or a permissible source from which to draw limitations upon, the exercise of a fundamental Community right such as the Community citizen’s right of residence in another Member State. As stated in the Directives, the national government is permitted by Community law to protect the national social-security system, but it is not permitted by Community law to protect the national labour market: which was a significant objective of immigration law.

17 This argument was very forcibly put, but it is based on an incorrect reading of the Community legislation. The Art.18 right is not absolute, for it depends for its existence on fulfilment of the conditions stipulated by the Directives: see sub-para.12(iii) above. The parents in question, who are not EU citizens, have no right in EU law to work in this country unless, as Miss Webber indeed argued that it was, that right is derived from their EU citizen children’s right to reside here. But the children do not have that right at all without the contribution of resources from the parent. The parents’ immigration position is not, therefore, being used as a basis for taking away from an EU citizen a right that would otherwise exist; but as a factual reason, one amongst what might be many others, for instance if a carer was disabled, why the resources requirement was not fulfilled. It will be recalled from [16] of W (China) that the appellants in that case disclaimed any argument that the national state in a case of incapacity would have to provide disablement benefit in order to create a right of residence for the EU national child, and it was not suggested before us that that position had been incorrect. I do not see why Community law should nonetheless require the national state to alter its immigration law when it is not required to alter its social-security law.

18 If the present argument were correct, it would lead to the conclusion that W (China) was wrongly decided. However, I do not reject the argument on grounds of precedent, but on the basis of logic as set out in [17] above. Another approach to the authority of W (China) was to say, as did Miss Webber, that the case had been correctly decided, in that it excluded employment that was unlawful at the time at which the application had been made; but that could not apply to a case such as the present, where the employment was lawful, under a temporary right to work, when the application was made. That concession, if it was such, shows the difficulty of the present argument. Quite apart from it turning on whether Ms Wang happened to apply to stay in this country before or after her eighteenth birthday, immigration law was applied in W (China) just as much as it was by the Asylum and Immigration Tribunal in the present cases. In the one case it rendered the actual or hypothetical employment unlawful now; in the other, unlawful at the point when the employment would matter, on the first day after the present permission expired.

19 Secondly, Miss Rogers and other counsel said that the ECJ had shown an inclination to support non-EU citizens in the interests of the assertion of the rights of EU citizens. That approach should be followed in the present case. But the cases [*701] that most clearly support that argument are Baumbast v Secretary of State for the Home Department (C-413/99) [2002] E.C.R. I-7091; [2002] 3 C.M.L.R. 23 and Carpenter v Secretary of State for the Home Department (C-60/00) [2002] E.C.R. I-6279; [2002] 2 C.M.L.R. 64Both of those cases concerned persons who had a right of residence that did not depend on the EU citizenship relied on by the children in this case: Mr Baumbast because he was a migrant worker, Mr Carpenter because he was providing services to other Member States. Far from their requiring resources or anything else from the non-EU citizens, the latter’s right were entirely dependent on the existing rights to reside as a EU citizen. The principle tentatively suggested before us does not exist in the form that it was sought to be used in this case; on that, I cannot improve on what was said about Carpenter by this court in [21] of its judgment in W (China).

20 The third submission affects all of the appellants, but it is of particular relevance to the Mouloungui appeal: which because of the continual unlawfulness of the presence in the United Kingdom of Mr Mouloungui would fail in any event if W (China) were applied to it. This submission was that the court should indeed look to the future, during the period of long-term residence, and ask whether, if granted permission to remain on Art.18 grounds, the adult claiming to provide the resources would indeed be able to do so, by taking employment if so permitted. The past experience was relevant to that question. Wang and Mr and Mrs Ahmed continue in their present employment; and Mr Mouloungui, although currently forbidden to work, had a “job offer”. Permission to remain must therefore be provided in order to enable a parent to fulfil the resources requirement of the Directive, and thus make a reality of the child’s right of residence as an EU citizen.

21 This approach fails for the reasons that have already been set out. By a combination of Art.18 read with the requirements of the Directives, the right to reside only exists once the requirements of the directives are fulfilled: see [12(iii)] above. The Member State therefore is not obliged to adjust its domestic law to create for the EU citizen the resources that he needs in order to create his right to reside: see sub-para.12(v) above. In the present cases, Mr Mouloungui as a failed asylum seeker; and Ms Wang and Mr and Mrs Ahmed as overstayers; are forbidden to work save for the quirk provided by their participation in these proceedings; and there is no reason at all to think that that position will change. But the present applications demand that the United Kingdom creates for them a right to work outside the normal rules in order to provide resources for the respective children.

22 To refuse to take that course, as the Court of Appeal refused to do in W (China), is not in any way inconsistent with Chen. In that case Mrs Chen’s resources were proved, extant, and not in any way dependent on her taking employment. The case said absolutely nothing about conferring any rights on the parent in order to enable her to create the required resources; and I venture to think that the ECJ would have been extremely surprised if told that it had opened the door to any such obligation. Nor is it right to argue that to prevent the adults from working renders the children’s EU rights meaningless. The EU right is not unlimited, but is subject to the conditions contained in the Directives. Those conditions include the resources condition, which was fulfilled in Chen, but which is not fulfilled in the particular cases such as the present.

[*702]

23 I therefore conclude that there is no obligation on the Member State to adjust its laws, whether its immigration law or any other part of the national legal order, to enable accompanying adults to work in order to provide resources for an EU citizen wishing to reside in that Member State. All of the appeals fail on that point. Grace’s position as a student

24 In a separate submission, the Mouloungui family sought to rely on Grace’s position as a student. That submission had two limbs.

25 First, the direct wording in Art.7(c) of Directive 2004/38 recognises as a separate basis for a right of residence of an EU citizen the fact that the citizen is enrolled in an educational establishment. Although it played a substantial role in the written submissions, Miss Rogers touched on the point only lightly in oral argument. She showed good judgement in that diffidence. As the Secretary of State pointed out, Art.7(c) applies only to further and vocational training, and not to children of school age; and that is a sensible and expected limitation, since while free movement of older students throughout the Community is desirable and necessary, that is scarcely imperative in the case of schoolchildren. And even without that objection, Art.7(c) is still subject to the resources requirement: otherwise, it could not in any event be used to create a right for Mr Mouloungui, which is a significant objective of these proceedings. And, to the extent that the real world is permitted to intrude upon this enquiry, it is just wrong to say that Grace is in the United Kingdom in order to pursue her education. She is in the United Kingdom in order to be with her father, and as an incident to that precedence is obliged by the law of this country to attend full-time education.

26 Secondly, it was sought to rely by analogy on Baumbast, where by a benevolent application of the rules relating to migrant workers the child of such a worker, established in education when she accompanied her father to this country, could remain here, and her (non-EU) mother with her, to continue her education even when her father had left the family. There, the child’s right to remain in education stemmed from the already existing EU right of her father. For the same reason as was set out above, the same argument cannot be used to create a right for the parent of an EU citizen who until that right is created has no right of residence here at all. Reference to the ECJ

27 It was suggested in argument that the case might require a reference of some sort to the ECJ. No formal application was made, but in any event I would not pursue the issue. The jurisprudence affecting these appeals is perfectly clear, and it is not only not necessary but also inappropriate to trouble the ECJ with it.

28 I further bear in mind that, as we are told by the Secretary of State, the House of Lords refused in strong terms an application for permission to appeal in W (China). I have no doubt that their Lordships would not have taken that view if they thought that any assistance from the ECJ was required. Disposal

29 In both of Ahmed and Mouloungui the AIT considered the arguments to be circular, thus giving effect to the ruling of this court set out in sub-para.12(iii) [*703] above. The AIT in Liu and Wang followed those decisions. They were all correct. For the reasons already set out, I would dismiss all of these appeals.

30 All of these cases have turned on the technical application of EU law, and not at all on the individual merits of the case. I would however wish to say something more about Grace Mouloungui. She has been in this country for a long time, is very well integrated here, and now is almost certainly much more of an English than a French person. From what has been said about her, she sounds to be a person that any country would be glad to count amongst their citizens; though there is no evidence as to whether that can be said about her father. Were it not for the presence of her father, she having apparently arrived on these shores as an unaccompanied minor would qualify for discretionary leave to remain until the age of eighteen. As it is, and with the failure of this application, she is faced with the removal either to France, where she knows no-one and has never lived; or with her father to the Democratic Republic of Congo, which country she left when six years old, and where there is no certainty (indeed, from what the court knows of that country, no likelihood) that her educational progress can be sustained, and certainly not sustained in the English language. I appreciate that the greatly complicating factor at the present is the position of her father. I do however hope that those advising the Mouloungui family will now revert to the Secretary of State to see whether a humane and sensible solution can be reached in this case, whether or not within the ambit of Art.8 or of Art.2 of the First Protocol of the ECHR . Envoi

31 When refusing permission to appeal in W (China) the House of Lords said this:

“The correct application of community law is so obvious as to leave no scope for any reasonable doubt.”

32 It is to be hoped that the professions, and the Legal Services Commission, will take good note of that observation, and that these appeals will be the last occasion on which the AIT, and this court, is troubled with these issues.

Moses L.J.:

33 I agree.

Lawrence Collins L.J.:

34 I also agree.

Order: Appeals dismissed