Secretary of State for the Home Department v NA (Pakistan) [2015] EWCA Civ 140

[2015] EWCA Civ 140Case No C5/2013/1871
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE LANG
UPPER TRIBUNAL JUDGE STOREY
IA/17654/2010
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 25 th February 2015
Before
THE MASTER OF THE ROLLSLORD JUSTICE SULLIVANLADY JUSTICE SHARP
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantNA (PAKISTAN)Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Brian Kennelly (instructed by Treasury Solicitors) for AppellantTom de la Mare QC and Ms Bojana Asanovic (instructed by Wilsons Solicitors LLP) for RespondentRichard Drabble QC and Tim Buley (instructed by Bindmans LLP) for IntervenersHearing Hearing dates: 19 TH& 20 TH January 2015
Judgment
[1]On the 17th July 2014 we handed down our judgment in the Appellant’s appeal against the Upper Tribunal’s decision in its determination promulgated on 22nd February 2013 that she did not have a retained right of residence under Article 13(2) of Directive 2004/38/EC (“the Directive”): [2014] EWCA Civ 995. We decided to refer the following question to the Court of

Justice of the European Union (“CJEU”):

“Must a third country national ex-spouse of a Union citizen be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC?”
[2]Having decided that the Appellant did not have a retained right of residence under Article 13(2), the Upper Tribunal decided that the Appellant did have a right of residence, both under Article 20 of the Treaty on the Functioning of the European Union (“the Treaty”) applying theprinciples in Ruiz Zambrano v Office national de l’emploi [2012] QB 265 (paragraph 68), and under Article 12 of Regulation (EEC) No. 1612/68 (“Regulation 1612/68”) (paragraph 78). It also allowed her appeal on Article 8 of the European Convention on Human Rights (“ECHR”) grounds (paragraph 79). The Secretary of State did not appeal against the decision of the Upper Tribunal to allow the Appellant’s appeal on Article 8 grounds. We adjourned the hearing of the Secretary of State’s appeal against the Upper Tribunal’s decisions that the Appellant had a right of residence both under Article 20 of the Treaty applying Zambrano principles, and under Article 12 of Regulation 1612/68. This is our judgment on the issues raised by the Secretary of State’s appeal. It should be read together with our judgment in the Appellant’s appeal. Although this judgment deals with the Secretary of State’s appeal, we will continue to refer to the Secretary of State as the Respondent.

Factual Background

[3]We summarised the relevant facts for the purpose of the Appellant’s appeal in paragraph 3 of our earlier judgment, as follows:
“The Appellant, NA, is a citizen of Pakistan. In September 2003 she married KA, a German national. In March 2004 the couple moved to the UK. Their relationship deteriorated. NA suffered a number of incidents of domestic violence. Following an assault on NA in October 2006 KA left the matrimonial home. In December 2006 he left the UK. While he was in the UK KA was either a worker or self employed. NA and KA had two daughters, MA and IA, both born in the UK on 14th November 2005 and 3rd February 2007, respectively. KA purported to divorce NA by a talaq issued in Karachi on 13th March 2007. In September 2008 NA instituted divorce proceedings in the UK, and the decree absolute was issued on 4th August 2009. NA was granted custody of the two children who are both German nationals.”
MA started school in January 2009, and IA started school in September 2010. Article 20/Zambrano[4]Articles 20 and 21 of the Treaty materially provide:
“Article 20 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) The right to move and reside freely within the territory of the Member States….. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. Article 21 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect……”
Article 21

The Upper Tribunal’s determination

[5]When considering the application of Zambrano principles to the Appellant’s appeal, the Upper Tribunal said in paragraph 68:
“Ordinarily in such a case it would be necessary for applicants to prove that the children concerned were prevented from living in the territory of their host Member State (of nationality) together with their parent(s) and that may not be easy to do, given that for a child to have acquired citizenship of a Member State his or her third-country national parent will often have lived there lawfully in the past. In the appellant’s case, however, there is no suggestion of the children being able to live with the father and Mr Deller [the Home Office Presenting Officer] said that he accepted that it was not realistic to expect that she could live in Germany with her children. He also accepted that for her and her children there was no alternative Union territory location other than the UK. In our view Mr Deller was right to make that concession. The appellant did not have any immigration status in Germany nor could she rely in Germany on any EU right of residence (to our understanding she would only be entitled to reside in Germany as a matter of EU law if able to show (as she clearly could not) that she was a self-sufficient parent in accordance with the principles set out by the Court of Justice in Chen [2004] ECR 1-9925). Accordingly, in our judgment the appellant is able to rely on her children’s Article 20 right of Union citizenship under the Treaty.”

Summary of the parties’ submissions

[6]At the adjourned hearing on the 19th and 20th of January 2015 it was common ground that the Upper Tribunal’s conclusion that NA had a Zambrano right to remain in the UK because she could not rely on any EU right of residence in Germany was wrong. As German nationals, both of NA’s daughters, MA and IA, are entitled to live in Germany. If MA and IA were to move to Germany NA, who is their parent with sole care, would have a derived right of residence in Germany applying Zambrano principles.[7]The Respondent submitted that her Presenting Officer’s concession before the Upper Tribunal (paragraph 5 above) that it was not realistic to expect that NA could live in Germany with her children was a concession that was made in the context of NA’s Article 8 claim, and should not be construed as a concession that to deny NA a right of residence in the UK would compel her in practice to leave the territory of the EU together with MA and IA. If the concession was to be so construed it was withdrawn as having been wrongly made. The Respondent did not dispute the Appellant’s contention that refusing to grant NA, the sole parent with custody and care of MA and IA, a right to reside in the UK would force MA and IA to leave the UK with her.[8]The Appellant referred to the Upper Tribunal’s reasons for allowing her appeal on Article 8 grounds, which were as follows:
“83…. It would not be proportionate for the appellant to face the threat of removal from the UK posed by the refusal decision. She has been in the UK for 8 years and has been in the UK lawfully up until her application for permanent residence. She has been in self-employment for some four years. She has been the victim of domestic violence. Her children are Union citizens in education. She has a derived EU right of residence pursuant to Article 12 Regulation 1612/68. The eldest child has been in the UK for over seven years. If the appellant’s case were considered under the new Rules now in force, she would succeed. 84. The fact that the appellant’s children may also be (dual) citizens of Pakistan, have some family ties there, appear to have cultural if not also linguistic affinities with that country and also appear able to continue their education there, are not factors that we consider should outweigh the weighty factors identified in the foregoing paragraph….”
[9]The Appellant submitted that:(1) MA and IA’s Article 20/21 rights were engaged by their (constructive) removal from the UK, because their presence, and that of NA in the UK was the result of the exercise of free movement rights by the family under the Treaty, the Directive and Regulation 1612/68.(2) Any decision to curtail their residence in the UK under Articles 20 and 21 had to comply with general principles of EU law, and in particular with EU fundamental rights.(3) In the light of the Upper Tribunal’s conclusions on NA’s Article 8 claim (paragraph 8 above) it would be a breach of Article 8, and thus of Article 7 of the Charter of Fundamental Rights of the European Union (“the Charter”), to constructively remove them from the UK by refusing NA’s application for residence, whether the proposed removal was to Pakistan as was proposed by the Respondent before the Upper Tribunal, or to Germany where the children’s only connection was with their (now estranged) EU national father.[10]The Respondent accepted that MA and IA’s Article 20/21 rights were engaged, but submitted that their rights would not be infringed unless they would “find themselves obliged in practice to leave the territory of the European Union altogether”: see Case C-86/12 Alokpa [2013] ECR I-nyr (10 October 2013). MA and IA would not be obliged in practice to leave the territory of the European Union because they had a right to reside in their state of nationality, Germany.[11]The Respondent submitted that the Upper Tribunal’s conclusion that (constructively) removing MA and IA from the UK would breach their rights under Article 8 of the ECHR and Article 7 of the Charter did not mean that they would be obliged to leave the territory of the EU. The test for this purpose was distinct from, and significantly more stringent than the threshold for an infringement of Article 8/Article7 rights. In support of this submission the Respondent relied upon the decision of the CJEU in Case C-256/11 Dereci and Ors v Bundesministerium fuer Inneres [2012] 1 CMLR 45 (15 November 2011). In Dereci the Court distinguished the two tests in paragraphs 66-68 of its judgment, as follows:
“66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole. 67. That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined. 68. Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.”
[12]Dereci was considered by this Court in Harrison (Jamaica) v Secretary of State for the Home Department [2013] 2 CMLR 23. In Harrison it was accepted that the EU citizens would not be effectively forced to leave the EU (paragraph 56), but it was submitted that the Zambrano principle applied because there would be interference with their Article 8 rights if they had to leave the UK. Elias LJ responded to that submission in paragraphs 67 and 68 of his judgment as follows:
“67. As to the submission that EU law might develop in that direction, I accept that it is a general principle of EU law that conduct which materially impedes the exercise of an EU right is in general forbidden by EU law in precisely the same way as deprivation of the right. But in my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen's rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to that extent that the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right. 68. In my judgment, it is also highly pertinent that the CJEU has confirmed in Dereci (paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of the non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle. In practice these are the most likely reasons why the right of residence would be rendered less beneficial or enjoyable. If these considerations do not engage this wider principle, it seems to me extremely difficult to identify precisely what will. What level of interference with the right would fall short of de facto compulsion and yet would constitute a form of interference which was more than simply the breakdown of family life or the fact that the EU citizens are financially disadvantaged by the removal of the non EU national family member? The scope for this right to bite would be extremely narrow and in my judgment there would be very real uncertainty as to the nature and scope of the doctrine. That legal uncertainty would itself be inconsistent with fundamental principles of EU law. I do not accept that the language of the CJEU in Dereci is deliberately seeking to leave open this grey area where Zambrano may bite.”
[13]The Appellant submitted that in none of the cases considered by the CJEU had there been a clear finding by a competent tribunal, as there had been in the present case, that removal of the EU citizen from the host member state to the EU citizen’s state of nationality would be a breach of that EU citizen’s rights under Article 8/Article 7. In Harrison there had been a finding in both cases that deportation would not be in breach of Article 8: see paragraph 4 of the judgment of Elias LJ. The CJEU’s decisions focussed on the position of the EU citizen in practice rather than on the issue of legal entitlement. The Upper Tribunal’s conclusion in the present case had not simply been that there would be some interference with this family’s Article 8 rights, but also that removal would not be proportionate (paragraph 8 above). It did not matter whether the Respondent’s concession to the Upper Tribunal that it was not realistic to expect that NA could live in Germany with her children (paragraph 7 above) was made in the context of NA’s Article 8 claim. It was equally applicable to her Article 20/Zambrano claim. Once it was accepted that it was not realistic to expect that NA could live in Germany with her children, MA and IA would in practice be obliged to leave the territory of the EU if NA was removed from the UK.

Reasons for reference

[14]Neither the CJEU nor the domestic courts have had to consider the issue raised in this appeal: where removal of an EU citizen from a host member state is proposed and the only state within the EU in which the EU citizen is entitled to live is his state of nationality, but there has been a finding by a competent tribunal that his removal from the host member state to his state of nationality would be in breach of his rights under Article 8 of the ECHR/Article 7 of the Charter, is the host member state entitled to remove him to his state of nationality? The answer to this question is not acte clair, particularly on the facts of this case, where there was a concession by the competent authority in the host member state that for the purpose of Article 8/Article 7 it was not realistic to expect the EU citizen to live in his state of nationality.

A further submission

[15]During the hearing, the Appellant advanced a further submission, which had not been raised before the Upper Tribunal: that Articles 20/21 of the Treaty were engaged on the facts of NA’s own case, by reason of her prior lawful residence in the UK with her dependent German children, in consequence of KA’s exercise of his free movement rights. Any curtailment of NA’s rights of residence under the Directive had to be in accordance with EU law: see case C-413/99 Baumbast v Secretary of State for the Home Department [2002] 3 CMLR 23 (17 September 2002). It would not be in accordance with EU law to remove NA from the UK in breach of her rights under Article 8.[16]The Respondent conceded that NA fell within the scope of EU law, to the extent that curtailing her previous right of residence under the Directive engaged the procedural safeguards in Article 15 of the Directive. However, the Respondent submitted that (subject to the CJEU’s ruling on the question in respect of Article 13(2), see paragraph 1 above) NA was no longer a beneficiary of the Directive because she did not fall within the definition of “family member” in Article 2(2). It followed, in the Respondent’s submission, that whether the UK should grant NA, a third country national, a right of residence in the UK was a “purely internal” question.[17]In our judgment this further submission added nothing of any substance to the Article 20/Zambrano claim discussed in paragraphs 4-14 (above). With the exception of Article 13(2) (see paragraph 1 above) it was not suggested that there was any Article of the Directive which arguably gave NA a right of residence in the UK. The hearing before the Upper Tribunal gave NA the procedural safeguards to which she was entitled under Article 15 of the Directive. Her appeal was allowed on Article 8 grounds. It is difficult to see how this finding of the Upper Tribunal could put the Appellant, as a non-EU citizen, in any better position than her EU citizen children. The Upper Tribunal’s found that it would be in breach of NA’s and her children’s Article 8 rights to remove them from the UK to Germany. Germany is the only state within the EU where they would be entitled to reside. If this does not mean that MA and IA would be effectively forced to leave the territory of the EU in breach of Article 20/Zambrano principles, then NA herself, as a non-EU citizen could not be in any better position. If the Article 20/Zambrano claim (above) succeeds, and MA and IA are entitled to remain in the UK on this ground then it is common ground that NA would have a derived right to reside with them in the UK. For those reasons we do not consider that the Appellant’s further submission raises any additional question which should be referred to the CJEU.

Article 12 of Regulation 1612/68

[18]Article 12 of Regulation 1612/68 provides as follows:
“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”
[19]In domestic law, the derivative right of residence of the parent of a child falling within Article 12 of Regulation 1612/68 is conferred by regulation 15A of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) which materially provides that:
“(1) A person (“P”) who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria. (3) P satisfies the criteria in this paragraph if – (a) P is the child of an EEA national (“the EEA national parent”); (b) P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and (c) P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom. (4) P satisfies the criteria in this paragraph if – (a) P is the primary carer of a person meeting the criteria in paragraph (3) (“the relevant person”); and (b) the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave.”
(emphasis added)

The Upper Tribunal’s determination

[20]Having concluded in paragraph 72 that the Appellant was unable to meet the requirement in paragraph (c) of regulation 15A(3) for there to be a temporal overlap between the child being in education and the EEA national parent being in the UK, the Upper Tribunal said in paragraph 73: “However, this is only the end of the matter if the new regulation affords at least the same scope of protection as Article 12, Regulation 1612/68. In our judgment it clearly does not. In Teixeira the Court of Justice made plain that it is not necessary for the child to be in education in the UK at a time when the EEA national parent is continuing to meet the condition that he is exercising Treaty rights in the host Member State. Having at paragraphs 50 and 73 reiterated previous jurisprudence that Article 12 applied as much to the primary carer of the child of a former migrant worker as to the child of a current migrant worker, at para 75 the Court stated that: “Consequently, the answer to Question 2(c) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child's parents having worked as a migrant worker in that Member State on the date on which the child started in education”.[21]The Upper Tribunal referred in paragraphs 74-77 to the Advocate General’s Opinion in Teixeira [2010] 2 CMLR 50, to the CJEU’s judgment in Czop [2013] PTSR 334, and to this Court’s decision in MDB v Secretary of State for the Home Department [2012] EWCA Civ 1015, and concluded in paragraph 78 that:
“Accordingly we are satisfied that the appellant has a derived right of residence on the basis of Article 12 Regulation 1612/68.”

Summary of the parties’ submissions

[22]The Respondent accepted that Article 12 did not contain an express requirement for there to be a temporal overlap between the child being in education in the host Member State and the EEA national parent being in that state, but submitted that such a requirement was necessarily to be inferred from the underlying purpose of the Article, as explained in the fifth recital to Regulation 1612/68:
“Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires…. that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country.”
[23]The Respondent submitted that the requirement in paragraph (c) of regulation 15A(3) for there to be a temporal overlap was lawful. If the EEA national parent had left the host Member State to which he or she had moved as a worker before their child had entered school in the host state, there could be no obstacle to the mobility of that parent’s freedom of movement as a worker if their child was not able to commence his/her schooling in that host state. Alternatively, the Respondent submitted that on the particular facts of this case, in which it was to be inferred that KA had left the UK permanently in December 2006, well before either of his two daughters had commenced school, the fact that they were not entitled to commence their schooling in the UK could not have any impact upon his freedom of movement as a worker.[24]The Appellant submitted that there was nothing in the Teixeira line of authorities (see paragraph 26 below) which suggested that the rights under Article 12 of a child of an EU national parent who had exercised their right of free movement for work/self employment were conditional upon the continued residence in the host state of that EU national parent at the time when the child’s education started.[25]The Appellant further submitted that the authorities established that Article 12 should be generously interpreted, and that only four conditions had to be met, all of which were satisfied by MA and IA:(i) the child in question was the child of an EU national worker;(ii) the EU national worker had historically exercised their right of free movement to come to reside with their family in the host state;(iii) the child had either moved to the host state or been born in it in consequence of the EU national parent’s exercise of their free movement rights; and(iv) the child had in fact entered the education system of the host state.[26]The parties referred us to the following authorities: Cases 389/87 and 390/87 Echternach and Moritz v Minister van Onderwijs en Wentenschappen [1990] 2 CMLR 305; Case 197/86 Brown v Secretary of State for Scotland [1988] 3 CMLR 403; Case C-413/99 Baumbast v Secretary of State for the Home Department [2002] 3 CMLR 23; Case 480/08 Teixeira v London Borough of Lambeth [2010] 2 CMLR 50; Case C-310/08 London Borough of Harrow v Ibrahim, Secretary of State for the Home Department [2010] 2 CMLR 51; and Case C-45/12 OFNATS v Ahmed [2013] ECR I-nyr (13 June 2013).[27]A detailed analysis of these authorities is unnecessary because it became clear during the parties’ oral submissions that: (i). The Respondent accepted that none of the authorities supported the proposition that there had to be a temporal overlap between the child being in education in the host state and the EEA national parent being in the host state. The Respondent’s submission was confined to the limited proposition that while the authorities did establish the existence of the four conditions set out in paragraph 25 (above), it did not go so far as to support the Appellant’s submission that there was no further condition, and in particular that a temporal overlap condition could not be inferred having regard to the underlying purpose of Article 12. Article 12 was to be given a generous interpretation only if that interpretation furthered the underlying purpose of the Article. (ii) The Appellant did not go so far as to submit that there was any statement in the authorities which expressly rejected the existence of a further, temporal overlap condition. The Appellant’s submission was confined to the proposition that there was no suggestion in any of the cases that there was such a condition; that in no case had the CJEU thought it necessary to examine the facts as to whether or not the EU national parent was still in residence in the host state when their child entered into education in that state; and that such a factual examination would have been necessary if the existence of a condition in Article 12 requiring temporal overlap was to be inferred.[28]In summary, the parties’ exhaustive analysis of the Teixeira line of authorities simply established that those authorities do not expressly either preclude or support the existence of a further, temporal overlap, condition in addition to the four conditions set out in paragraph 24 above.

Reasons for Reference

[29]Although the Respondent placed much emphasis on the particular facts of this case, in which we accept that it must be inferred that KA had permanently left the UK well before either of his two daughters had commenced school, we concluded that the question whether Article 12 of Regulation 1612/68 is subject to an implied condition that the EU national parent must be in the host Member State when the child enters education in that state must be answered as a matter of principle, and that the answer is not acte clair. The question is left open by both the Regulation itself and the authorities. The answer to this question should be the same in whichever host Member State the EU citizen’s child is educated.

Questions

[30]Accordingly, we pose the following questions for the Court:(1) Does an EU citizen have a right to reside in a host member state under Articles 20 and 21 of the TFEU in circumstances where the only state within the EU in which the citizen is entitled to reside is his state of nationality, but there is a finding of fact by a competent tribunal that the removal of the citizen from the host member state to his state of nationality would breach his rights under Article 8 of the ECHR or Article 7 of the Charter?(2) If the EU citizen in (1) (above) is a child, does the parent having sole care of that child have a derived right of residence in the host member state if the child would have to accompany the parent on removal of the parent from the host member state?(3) Does a child have a right to reside in the host Member State pursuant to Article 12 of Regulation 1612/68 EEC (now Article 10 of Regulation 492/2011/EU) if the child’s Union citizen parent, who has been employed in the host Member State, has ceased to reside in the host Member State before the child enters education in that state?

Cited in 1 later judgment