Factual and Procedural Background
Her Majesty's Court of Appeal in Northern Ireland referred a question of European Union law to the Court of Justice of the European Union (CJEU) concerning the status of a non-EU citizen claiming a derivative right of residence in the United Kingdom based on the EU citizenship of her child.
The Appellant and her husband are nationals of a non-EU country, Albania, married in 2011. The husband held a residence card permitting him to reside in the United Kingdom from May 2009 to May 2014, originally based on a relationship with a UK national which ended in early 2011. He lived and worked in Northern Ireland from 2009 until 2011, then returned to Albania to marry the Appellant. He subsequently returned to Northern Ireland sometime between January and July 2012, with his residence card remaining valid and unrevoked.
The Appellant entered Northern Ireland at the same time without legal authorization under domestic law. The family has since lived in Northern Ireland continuously. Their first son was born in Northern Ireland in May 2013 and was granted Irish nationality in July 2013. Two further children were born later, one of whom also obtained Irish nationality.
The Appellant's husband has intermittently worked as a restaurant worker in Northern Ireland since 2009, but since May 2014, when his EEA residence card expired, he has worked illegally under domestic law as he lacked permission to live, work, and settle in the UK pursuant to the Immigration Act 1971. None of the family members have resided or worked in any other EU Member State.
Procedurally, the Appellant applied to the Home Office for recognition of a derivative right of residence under the Citizens Directive, relying on her status as primary carer of her Irish-national child and arguing that refusal would deprive the child of EU citizenship rights. The application was refused on grounds that the Appellant did not qualify as a "family member" under the Directive and failed to meet the self-sufficiency requirement of Article 7(1)(b) due to insufficient evidence of sustainable funds for the child. The requirement for comprehensive sickness insurance was undisputed.
The Appellant's initial appeal was dismissed by the First-tier Tribunal in June 2015, and a subsequent appeal on points of law was dismissed by the Upper Tribunal in October 2016, which also refused permission to appeal to the Court of Appeal. The Court of Appeal is currently considering an application for permission to appeal the Upper Tribunal's decision.
Legal Issues Presented
- Can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources under Article 7(1)(b) of the Citizens Directive?
- If yes, can Article 7(1)(b) be satisfied where the employment is deemed precarious solely by reason of its unlawful character?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Alokpa [Case C-86/12] |
Clarified that for Article 7(1)(b) of the Citizens Directive, it suffices that requisite resources are available to the Union citizen, with no requirement on the origin of those resources. |
The Court noted Alokpa did not decide on income from employment unlawful under national law, leaving the issue unresolved. |
| W (China) and X (China) [2006] EWCA Civ 1494 |
Relevant English Court of Appeal decision concerning unlawful employment and residence rights. |
The Court identified a possible conflict with the CJEU decisions and other national decisions, highlighting the issue as not acte clair. |
| Zhu and Chen [Case C-200/02] |
CJEU decision relevant to EU citizenship rights and derivative residence rights. |
Referenced to illustrate potential conflicts with domestic case law on the issue. |
| OA v Minister for Justice, Equality and Defence [2014] IEHC 384 |
High Court of Ireland decision addressing related issues of EU citizenship and residence rights. |
Noted to demonstrate differing national approaches, contributing to the question's complexity. |
Court's Reasoning and Analysis
The Court acknowledged that while the CJEU in Alokpa clarified that the availability of resources to the Union citizen suffices for Article 7(1)(b), it did not address whether income from employment unlawful under national law qualifies as such resources. The Court identified a potential conflict between domestic case law and CJEU rulings, including differences in the English Court of Appeal and Irish High Court decisions. Given these inconsistencies and the absence of clear guidance from the CJEU, the Court concluded that the issue was not acte clair (i.e., not sufficiently clear) and therefore warranted a preliminary ruling from the CJEU to resolve the legal uncertainty.
Holding and Implications
The Court of Appeal in Northern Ireland formally referred two questions to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Article 7(1)(b) of the Citizens Directive regarding the sufficiency of resources derived from unlawful employment.
The holding is a referral for preliminary ruling rather than a final determination on the substantive issues.
The direct effect of this decision is to suspend final resolution of the Appellant's appeal pending the CJEU's guidance. No new precedent has been established by the Court of Appeal itself, but the referral aims to clarify important aspects of EU law affecting derivative residence rights of non-EU nationals caring for EU citizen children.