Ali v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns rights of residence in the United Kingdom derived from European Community law and the domestic regulations implementing that law. The Appellant, a Somali national who arrived in the United Kingdom in December 2002, initially claimed asylum and subsequently made a second asylum claim for himself and his dependent son, a Dutch national born in 1999. The Immigration Judge dismissed the asylum claim on 26 August 2005, a decision no longer challengeable on asylum grounds. However, the Appellant was granted permission to appeal on issues relating to rights of residence under European law and alleged breaches of Article 8 of the European Convention on Human Rights (ECHR). The Immigration Judge found factual disputes concerning the Appellant’s family relationships, notably rejecting the claim that the Appellant was married to a Dutch citizen, Mrs. Abdi, and concluded that Mrs. Abdi was not a "worker" under European Community law. The Appellant’s claims to residence rights through his son’s education and Article 8 rights were also rejected. This appeal challenges aspects of these findings and the legal interpretations underpinning them.

Legal Issues Presented

1. Whether the Immigration Judge applied the correct standard of proof in determining the marital status of the Appellant and Mrs. Abdi.
2. Whether Mrs. Abdi qualifies as a "worker" under Article 39 of the European Community Treaty, thereby conferring residence rights on the Appellant.
3. Whether the Appellant’s son, a Dutch national, has a right of residence in the United Kingdom by virtue of Article 18 of the European Community Treaty through receiving education, and whether the Appellant has a derivative right of residence as his parent.
4. Whether removal of the Appellant would breach his rights under Article 8 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The Immigration Judge erred by applying the civil standard of proof (balance of probabilities) rather than a lower standard such as "serious possibility" or "reasonable likelihood" when deciding the marital status of the Appellant and Mrs. Abdi.
• Mrs. Abdi should be recognized as a "worker" under European Community law despite her pregnancy and childcare responsibilities, with reference to case law protecting pregnant workers and job seekers.
• The Appellant’s son, as a European Union citizen receiving education in the United Kingdom, has an unfettered right of residence under Article 18 of the Treaty, and the Appellant should derive a right of residence as his parent to accompany and care for him.
• The limitation on residence rights requiring sufficient resources and sickness insurance does not apply until Directive 2004/38 comes into force on 30 April 2006, leaving a lacuna that supports the Appellant’s claim.
• It was submitted that the question of the child’s right of residence should be referred to the European Court of Justice for clarification.

Respondent's Arguments

• The normal civil standard of proof was correctly applied to determine marital status, and the Immigration Judge’s disbelief of the Appellant’s and Mrs. Abdi’s evidence was justified by inconsistencies and lack of documentary proof.
• Mrs. Abdi was not a "worker" because she never sought employment or took steps to find work during the relevant period, and pregnancy or childcare responsibilities do not negate the requirement to demonstrate genuine job-seeking activity.
• There is no unfettered right of residence under Article 18 merely by virtue of a child receiving education; existing Directives impose conditions such as sufficient resources and sickness insurance to prevent burdening the host state’s social system.
• The Directive 2004/38 does not create new restrictions but reflects existing limitations, and the Appellant’s interpretation would nullify important regulatory provisions.
• Previous binding case law rejects the existence of an unlimited right of residence under Article 18, and the case does not require a reference to the European Court of Justice.
• The Immigration Judge’s conclusion that no breach of Article 8 rights would result from removal is sound and not challenged effectively on appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the appropriateness of the civil standard of proof (balance of probabilities) in determining marital status, rejecting the Appellant’s suggestion to apply a lower standard. The Immigration Judge’s disbelief of the Appellant’s and Mrs. Abdi’s evidence was justified by inconsistencies and lack of corroboration. Regarding Mrs. Abdi’s status as a "worker," the court emphasized the necessity of genuine job-seeking activity and found no evidence that she sought employment during nearly five years in the United Kingdom, despite her pregnancy and childcare responsibilities. The court held that pregnancy or childcare does not exempt a person from the requirement to seek work to qualify as a worker under Article 39.

On the question of the Appellant’s son’s right of residence, the court rejected the argument that Article 18 confers an unfettered right to reside for educational purposes. It noted that relevant European Directives impose conditions such as sufficient resources and sickness insurance to prevent becoming a burden on the host state. The court relied on case law, particularly Baumbast, to demonstrate that the child’s right of residence is derivative of a parent’s status as a worker, not an independent right based solely on education. The court further observed that the new Directive 2004/38 does not represent a new restriction but reflects existing limitations.

In addressing the request for a reference to the European Court of Justice, the court found the legal position sufficiently clear and binding precedent controlling, particularly the Vitale decision, which remains authoritative. Finally, the court endorsed the Immigration Judge’s conclusion that removal would not breach Article 8 ECHR rights, as no insurmountable obstacles existed to living together outside the United Kingdom.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that the civil standard of proof applies to marital status determinations in European residence law cases, and that evidence of genuine job-seeking is essential to qualify as a "worker" under the Treaty. The judgment clarifies that Article 18 does not confer an unfettered right of residence for education alone, reinforcing the importance of existing Directives imposing conditions to prevent undue burdens on host states. The Appellant’s son’s residence rights do not independently extend to the Appellant absent the parent’s qualifying status. No breach of Article 8 ECHR was found. This ruling directly affects the parties by upholding the refusal of residence rights and removal but does not establish new precedent beyond applying established European and domestic law principles.