Introduction

The case of Seye (Chen children; employment) France [2013] UKUT 178 (IAC) was adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on March 28, 2013. This case revolves around the interpretation and application of EU laws concerning the rights of residence for EU national children and their non-EU parents under the framework established by the seminal Chen case.

The appellants were the Secretary of State for the Home Department (SSHD), contesting the appeals made by Mr. Selwyn Jason Seye, Ms. Clarisse Tchatchou, Miss Rhode Kyria Ndanga Teukura, and Mr. Serge Patrice Ndjanga Techakounte. The primary issue centered on whether the first claimant, a French national child born in the UK, could be deemed a self-sufficient person, thereby entitling his non-EU parents and stepfather to derivative rights of residence in the UK.

Summary of the Judgment

The Upper Tribunal dismissed the appeals brought forth by the claimants, upholding the SSHD's initial refusal to grant residence documents. The court concluded that the first claimant did not meet the criteria for being a self-sufficient person under the Immigration (European Economic Area) Regulations 2006. Specifically, the employment of the stepfather was deemed illegal, and the mother's lawful employment under limited leave could not establish self-sufficiency for the child.

The judgment reinforced the binding nature of previous cases such as W (China) and X (China) and Liu and Ors v SSHD, emphasizing that both lawful and unlawful employment by parents could fail to satisfy the self-sufficiency requirement in certain contexts.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that have shaped the understanding of self-sufficiency in the context of EU residence rights:

• Chen (C-200/02): Established that EU national children have the right to reside in another Member State if they are considered self-sufficient, with their primary carers also entitled to derivative rights.
• W (China) and X (China) [2006] EWCA Civ 1494: Determined that income from illegal employment cannot establish self-sufficiency for EU national children.
• MA & Others [2006] and ER and Others [2006]: Expanded on the limitations of deriving self-sufficiency from both lawful and unlawful employment under certain immigration conditions.
• Liu and Ors v SSHD [2007] EWCA Civ 1275: Clarified that lawful employment under limited leave does not fulfill the self-sufficiency requirement.

These precedents collectively underscored the necessity for the resources supporting a Chen child to be stable, lawful, and independent of precarious employment conditions.

Legal Reasoning

The court's legal reasoning focused on the strict interpretation of self-sufficiency:

• Self-Sufficiency Definition: Under Regulation 4(1)(c) of the 2006 EEA Regulations, a self-sufficient person must have sufficient resources to avoid becoming a burden on the host state's social assistance system and possess comprehensive sickness insurance.
• Impact of Employment Legality: The stepfather's employment was assessed as illegal, rendering any income derived from it insufficient to establish self-sufficiency. The court emphasized that unlawful employment is inherently unstable and cannot be relied upon to meet the family's resource requirements.
• Limited Leave Extensions: The mother's lawful employment was under limited leave, extended under Section 3C of the Immigration Act 1971. The court held that even lawful employment in such a precarious immigration status does not satisfy the self-sufficiency criterion.

The court navigated the tension between individual and family rights, reaffirming that the self-sufficiency of the EU national child must be ascertainable independently of the legal uncertainties surrounding the parents' employment and residency statuses.

Impact

This judgment reinforces the stringent standards applied to self-sufficiency under the Chen framework. It highlights the judiciary's commitment to preventing the circumvention of EU residence rights through parents' precarious or unlawful employment. For future cases, this decision serves as a deterrent against relying on unstable employment situations to secure derivative residence rights for non-EU family members.

Moreover, it emphasizes the necessity for clear, lawful, and stable resource provisions when claiming self-sufficiency, thereby influencing how similar cases may be assessed in the UK and potentially in other Member States adhering to similar interpretations of EU law.

Complex Concepts Simplified

Conclusion

The Seye v SSHD [2013] judgment serves as a pivotal reaffirmation of the stringent requirements for establishing self-sufficiency under Chen-based residence rights. By dismissing the claimants' appeals, the Tribunal underscored the necessity for legal stability and lawful employment in meeting the criteria for self-sufficiency. This decision not only aligns with established case law but also sets a clear precedent for future assessments, ensuring that derivative rights are not inadvertently or unjustly granted through unstable or unlawful means.

Practitioners and applicants alike must heed the lessons from this case, recognizing that securing derivative residence rights demands robust, lawful, and sustainable resource provisions. The judgment thus plays a crucial role in shaping the landscape of EU residence rights in the UK, emphasizing the balance between individual and family entitlements within the framework of self-sufficiency.