MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh

Factual and Procedural Background

The reconsiderations concern joined appeals by an EU national child and her parents. The first and second appellants, married nationals of Bangladesh, are the parents of the third appellant, their daughter, who was born in Dublin in 2001 and is therefore an Irish citizen by jus soli. In July 2005, applications were made for residence permits under EU law for the child and leave to remain for the parents as her carers under the Immigration Rules. The child claimed a right of residence as a self-sufficient EU citizen under Article 18 EC Treaty and Directive 90/364, while the parents claimed derivative rights as her primary carers.

In March 2006, the Secretary of State refused the applications due to concerns about the appellants' ability to support themselves without public funds or employment, the latter being prohibited for the parents under the Immigration Rules. The appellants appealed, but their appeals were dismissed by an Immigration Judge in May 2006. Reconsiderations were ordered by a Senior Immigration Judge later that month. The facts of the appeals are undisputed: the first appellant had student leave and was studying and working lawfully; the second appellant entered as his spouse and also worked lawfully; both parents supported the family without reliance on public funds and had medical insurance. The Immigration Judge concluded the parents did not have a right to work that would sustain the child's self-sufficiency, and the relevant Immigration Rules were not contrary to EU law.

Legal Issues Presented

1. Whether an EU national child can establish a right of residence in the UK based on self-sufficiency derived from income earned by her parents while they are present for a temporary purpose.
2. Whether the parents, as primary carers, derive a right of residence linked to the child's rights.
3. Whether prohibitions on the parents' employment under paragraphs 257C and 257D of the Immigration Rules are lawful under EU law.

Arguments of the Parties

Appellants' Arguments

• The child is factually self-sufficient based on the lawful income of her parents and has comprehensive medical insurance.
• No restrictions should apply to the source of income establishing self-sufficiency, relying on paragraph [30] of the Court of Justice's decision in Chen.
• The parents derive a right of residence as primary carers and should not be prohibited from working, as such restrictions infringe EU law.
• Commission v Belgium supports inclusion of income from an EU national's partner in assessing self-sufficiency.
• The Tribunal decision in GM and AM permits consideration of income from parents with independent rights to reside and work.

Respondent's Arguments

• The Immigration Judge was correct to refuse reliance on the parents' income to establish the child's self-sufficiency.
• The prohibition on parents' employment under the Immigration Rules is lawful and consistent with EU law.
• The child's right of residence cannot be derived from income earned by family members who have no independent right to reside or work.
• Reliance on income from parents working in the UK to establish the child's right of residence would create circularity and is rejected by case law including GM and AM and the Court of Appeal decision in W(China) and X(China).

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging that self-sufficiency may be established by reliance on resources of persons other than the EU national, including income derived from employment or self-employment. However, the court emphasized that no case supports reliance on income earned by family members in the host Member State when those family members seek to derive or sustain their right of residence from the EU national dependent on that income, as this would create circularity.

The court rejected the appellants' argument that any source of income could be relied upon, clarifying that acceptable sources exclude illegal or unlawful income and that the right to reside is conditional on lawful resources. The Court of Appeal's decision in W(China) and X(China) was pivotal in establishing that the right to reside under Article 18 EC Treaty and Directive 90/364 exists only if the EU national has lawful access to resources, and no obligation exists on the state to facilitate access to such resources.

The court further explained that the derivative rights of family members depend on the EU national's independent right to reside, which must exist prior to the family members' rights arising. The appellants' case was deemed circular because the child's right of residence was said to depend on the parents' employment, which itself required a right to reside derived from the child.

Accordingly, the court found that the Immigration Rules' prohibitions on employment and reliance on public funds for parents of a "Chen child" are consistent with EU law, as the parents do not have an independent right to work or reside absent the child's established right. Thus, the future prohibition on the parents' employment under the Immigration Rules was not unlawful.

Holding and Implications

The court UPHELD the decision of the Immigration Judge dismissing the appeals.

The direct effect of this ruling is that the EU national child cannot establish a right of residence in the UK based on income derived from the lawful employment of her parents who are present on a temporary basis without independent residence rights. Consequently, the parents do not have derivative rights to reside or work in the UK. The Immigration Rules' restrictions on the parents' employment and reliance on public funds are lawful and consistent with EU law. No new precedent was set beyond affirming the application of existing case law and principles regarding self-sufficiency and derivative rights.