Article 12 Residency Rights Clarified in Upper Tribunal Decision

Introduction

The case of MDB and Others (Article 12, 1612/68) Italy [2010] UKUT 161 (IAC) before the Upper Tribunal (Immigration and Asylum Chamber) addressed significant issues pertaining to the rights of residency under Article 12 of Regulation 1612/68 within the framework of EU free movement laws. The appellants, MDB and her two sons, sought to obtain permanent residence in the United Kingdom based on their status as family members of an EEA national, Mr. LDB, who was married to MDB. The crux of the case revolved around whether the children could derive Article 12 rights of residence from their father, considering his employment status during their residency.

Summary of the Judgment

The Upper Tribunal upheld the decision of Immigration Judge E.B. Grant, dismissing the appeals of MDB and her sons. The Tribunal concluded that the appellants did not satisfy the requirements under Regulation 15(1)(b) of the 2006 EEA Regulations nor under Article 12 of Regulation 1612/68 to qualify for permanent residence. The primary reason was that Mr. LDB, the EEA national father, did not sufficiently exercise Treaty rights as a worker in the UK during the relevant periods. Specifically, his limited employment status and periods of jobseeking did not meet the threshold required to confer residency rights to his children under Article 12.

Analysis

Precedents Cited

The judgment extensively referenced several key European Court of Justice (ECJ) cases that shaped the interpretation of Article 12:

Baumbast Case C-413/99: Established that a child's right of residence under Article 12 begins when they commence education, not from birth.
London Borough of Harrow v Ibrahim Case C-310/08: Reinforced the principles from Baumbast, emphasizing the independence of Article 12 rights from the parent's current employment status.
Maria Teixeira v London Borough of Lambeth Case C-480/08: Further clarified the commencement of Article 12 rights tied to the child's initiation of education.
Brown v The Secretary of State for Scotland [1988] and Landesamt für Ausildungsförderung Nordrhein-Westfalen v Lubor Gaal [1995]: Highlighted the necessity for at least one parent to have exercised Treaty rights as a worker for the child to derive residency rights.

These precedents collectively informed the Tribunal's interpretation of the appellants' eligibility under Article 12.

Legal Reasoning

The Tribunal's legal reasoning centered on the interpretation of Article 12 and its application to the facts of the case:

Employment Status of Mr. LDB: The Tribunal scrutinized Mr. LDB's periods of employment and jobseeking. Although he was a qualified person as a jobseeker from September 2002 to November 2003, his subsequent employment was minimal (10 weeks at 8 hours per week in 2007), which the Tribunal deemed insufficient to qualify as exercising Treaty rights.
Commencement of Article 12 Rights: Consistent with Baumbast, the Tribunal held that Article 12 rights commence when the child begins education. Thus, the rights of the appellants were linked to their educational start dates, which did not sufficiently accumulate the required residence period for permanent residency.
Independence from Current Employment: The Tribunal affirmed that Article 12 rights are independent of the current employment status of the parent, aligning with Ibrahim and Teixeira decisions.

Ultimately, the Tribunal concluded that the appellants could not establish a continuous period of five years of residence under Article 12, as Mr. LDB did not meet the necessary criteria during the relevant periods.

Impact

This judgment has several implications for future cases involving residency rights under Article 12:

Clarification of Employment Requirements: Reinforces the necessity for EEA nationals to actively exercise Treaty rights as workers to confer residency rights to their children.
Commencement of Rights: Affirmation that Article 12 rights begin with the child's entry into education, not from birth or residency alone.
Assessment of Ancillary Activities: Emphasizes the need for genuine and substantive employment or jobseeking activities to qualify as a worker.

Legal practitioners must carefully evaluate the employment status of EEA nationals and the educational status of their dependents when advising on residency applications under similar regulations.

Complex Concepts Simplified

Article 12 of Regulation 1612/68

This provision allows the children of a Member State's national who is or has been employed in another Member State to access education and vocational training there. Importantly, the children's residency rights are tied to the parent's employment status at the time of their residing and are not automatically granted from birth.

Regulation 15(1)(b) of the 2006 EEA Regulations

Under this regulation, family members of an EEA national can acquire permanent residence if they have legally resided in the host Member State for five continuous years as family members of someone exercising Treaty rights (e.g., working, self-employed).

Treaty Rights

These refer to the rights provided under EU law that allow EEA nationals and their family members to live, work, and study in other EEA Member States. Exercising these rights, particularly as a worker, is essential for granting residency rights to family members.

Permanent Residence

This status allows an individual to reside indefinitely in the host Member State, subject to conditions outlined in the relevant regulations, such as not being an unreasonable burden on the social assistance system.

Conclusion

The Upper Tribunal's decision in MADB and Others (Article 12, 1612/68) Italy [2010] UKUT 161 (IAC) underscores the stringent requirements necessary for familial residency rights under EU free movement laws. By affirming that the mere status of being a jobseeker does not suffice for Article 12 rights and emphasizing the commencement of rights with educational enrollment, the Tribunal has set a clear precedent. This judgment reinforces the importance of active and substantial exercise of Treaty rights by EEA nationals to confer residency benefits to their dependents, shaping future adjudications in immigration and residency matters within the EU framework.