Introduction

The case of ER and Others (EU national; self-sufficiency; illegal employment) Ireland ([2006] UKAIT 00096) adjudicated by the United Kingdom Asylum and Immigration Tribunal on December 18, 2006, centers on a family's struggle to secure the right of residence in the United Kingdom under EU law. The appellants comprise an EU national child born in Northern Ireland, his Filipino parents, and his sister. The primary legal contention revolves around the self-sufficiency of the family and the legality of the parents' employment in the UK.

Summary of the Judgment

The family, originally from the Philippines, moved to Belfast in 2002 and later, in 2004, welcomed their son who acquired Irish citizenship by birth. As the parents' permits expired in July 2004 without renewal, they remained in the UK unlawfully. In 2005, an application for a residence permit under EU law was made for the child and subsequently for the parents and sister under the Immigration Rules. The Secretary of State refused these applications, citing insufficient evidence of self-sufficiency and prohibitions on the parents' employment. Upon appeal, the Immigration Judge dismissed the family's claims, a decision upheld upon reconsideration by a Senior Immigration Judge. The crux of the judgment focused on the inability of the appellants to demonstrate self-sufficiency without relying on public funds or unlawful employment.

Analysis

Precedents Cited

The judgment extensively references several key cases that shape the interpretation of EU free movement rights within the UK context:

• Chen v SSHD: Established that a child EU national's right to reside is derivative, allowing family members to reside based on their dependency and support of the child.
• Akrich: Confirmed that non-EU family members cannot derive EU residence rights if they lack lawful presence.
• W(China) and X(China) v SSHD: Reinforced that rights of residence cannot be established through unlawful employment.
• GM and AM v France: Highlighted limitations on self-sufficiency when dependent upon state support.

These precedents collectively underscore the judiciary's stance on linking lawful residence, self-sufficiency, and the legality of employment in determining EU residence rights.

Legal Reasoning

The court's legal reasoning hinges on two pivotal aspects:

• Self-Sufficiency: Defined under EEA Regulations 2006, self-sufficiency requires that appellants have adequate resources to avoid being a burden on the UK's social assistance system. This encompasses not only financial resources but also comprehensive sickness insurance.
• Legality of Employment: The parents' continued employment post the expiration of their permits was deemed unlawful. The court held that any income derived from illegal employment cannot be considered in establishing self-sufficiency.

Furthermore, the court emphasized the indivisibility of EU rights within the family context. If the primary EU national (the child) fails to establish self-sufficiency, derivative rights of residence for the family members cannot be upheld. The judgment also tackled the argument that child benefits received by the mother do not constitute public funds in the context of self-sufficiency, thereby not undermining the family's standing.

Impact

This judgment reinforces the stringent requirements for EU free movement rights within the UK, particularly emphasizing:

• The necessity of lawful status for both the primary EU national and their family members to derive residence rights.
• The non-acceptance of income derived from unlawful employment when assessing self-sufficiency.
• The limited scope of self-sufficiency, where reliance on certain public funds (like child benefits) does not detract from the overall assessment of the family's ability to support themselves.

Future cases will likely reference this judgment when evaluating the balance between EU rights and national immigration controls, especially in scenarios involving family dependencies and employment legality.

Complex Concepts Simplified

Self-Sufficiency

Under the EEA Regulations 2006, self-sufficiency refers to having sufficient financial resources to support oneself and family members without relying on the host country's social assistance systems. This includes having adequate income and comprehensive health insurance.

EEA Regulations 2006

The Immigration (European Economic Area) Regulations 2006 implement EU free movement directives within the UK. They define who qualifies as a "self-sufficient person" and outline the rights of EU nationals and their family members to reside and work in the host Member State.

Derivative Rights

Derivative rights allow family members of an EU national to reside in the host country based on their relationship and dependency on the EU national. However, these rights are contingent upon the primary EU national meeting certain criteria, such as self-sufficiency.

Conclusion

The judgment in ER and Others v UK serves as a pivotal reference in delineating the boundaries of EU free movement rights within the UK's immigration framework. It underscores the imperative that both EU nationals and their family members must establish self-sufficiency through lawful means to secure residence rights. The refusal of the appellants to demonstrate legality in their employment and sufficient resources ultimately led to the dismissal of their claims, reaffirming the judiciary's commitment to upholding national immigration policies in harmony with EU directives. This case reinforces the importance of lawful status and financial independence in the realm of EU residence rights, setting a clear precedent for future adjudications in similar contexts.