AM v Secretary of State for Work and Pensions and another (JSA, IS and HB): [2019] UKUT 361 (AAC) [2019] UKUT 361 (AAC)

“The next argument advanced on behalf of the appellant is that she has a derivative right to reside through her son, for whom she is the primary carer, and who is the family member of an EEA worker…..In her submission, the appellant’s representative cited the authorities of Chen, Baumbast, Teixeira and Ibrahim. In my judgment, these authorities do not assist the appellant because her son…was neither in education, no[r] self-sufficient, at the relevant time. The appellant’s representative argued that the principles established in the cases cited should be extended because the appellant should be entitled to a derivative right to reside as [her son]’s primary carer, apparently regardless of the way in which [her son]’s own right to reside arose. The submission was put on the basis that in order for [the son] to exercise his right of residence it was necessary for the appellant to enjoy a derivative right, because denying this to the appellant would effectively deny [the son] his right of residence. I do not accept that wide-ranging submission. Any derivative right of residence must be established in accordance with Regulation 15A of the 2006 Regulations, and the appellant did not establish this. In particular: (a) Any derivative right based on Regulation 15A(2)(b) on the basis that [the son] would be unable to remain in the United Kingdom of the appellant was required to leave, would rely on [the son] being self-sufficient. Regulation 4(5) of the 2006 Regulations means that, in the context of Regulation 15A(2) [the son] and the appellant would have to have sufficient combined resources to be self-sufficient. AM –v- SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC) CJSA/1637/2017, CIS/1888/2017 and CH /1889/2017 12 (b) The appellant’s assertion that she remained in a durable relationship with [her son’s father] until October 2013 (which I accepted) relied in part on the continued contact between [the father and the son]. Although by January 2015 the appellant was not aware of [the father]’s address, she knew that he was working in Swansea…, and notwithstanding the matter set out in [(a)] above, I am not satisfied [the son] would have necessarily had to leave the United Kingdom if the appellant was denied a derivative right to reside because his father remained in the United Kingdom as a qualified person.”

"39. In my judgment, the Court of Appeal's decision in Macastena confirms, and applies, the scheme of the 2006 Regulations and Directive which I have set out above, drawing the distinction between the right of residence of a 'family member' and the absence of any right of residence for an 'extended family member' until a residence card is issued by the Secretary of State under reg. 17(4) of the 2006 Regulations. Only from that point in time do the 2006 Regulations confer upon the 'extended family member' a right of residence because from that point in time they are treated as a 'family member' and may, if appropriate rely upon the rights of residence recognised in reg. 13(2) AM –v- SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC) CJSA/1637/2017, CIS/1888/2017 and CH /1889/2017 16 and 14(2). Then and only then, does the individual begin to acquire a period of lawful residence under the 2006 Regulations which can count towards establishing a 'permanent right of residence' on the basis of residing in the UK in accordance with the 2006 Regulations for a continuous period of five years under reg.

“29 Costs or expenses (1)The costs of and incidental to— (a)all proceedings in the First-tier Tribunal, and (b)all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place. (2)The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid. (3)Subsections (1) and (2) have effect subject to Tribunal Procedure Rules. (4)In any proceedings mentioned in subsection (1), the relevant Tribunal may— (a)disallow, or (b)(as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules. (5)In subsection (4) “wasted costs” means any costs incurred by a party— (a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or (b)which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay. (6)In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf. (7)In the application of this section in relation to Scotland, any reference in this section to costs is to be read as a reference to expenses.”

“[i]t is a general principle of EU law on free movement that where a child has a right of residence then the primary carer of that child will also have a right of residence in order to render the right of the child effective”

“EU law residence rights must be capable of being genuinely enjoyed (ie they must be rendered effective or, which is the same thing, protected in substance). That is the general principle which we say applies here. It is stated concisely by Lady Justice Arden at [paragraph 6] of Sanneh[[2015] EWCA Civ 49; [2016] QB 455] “[t]he EU law principle of effectiveness means that rights given by EU law must be protected in substance”.”

“40 Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 27, and Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraph 21). Since Mr Ruiz Zambrano’s second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the Member State in question to lay down (see, to that effect, inter alia, Case C-135/08 Rottmann [2010] ECR I-0000, paragraph 39), they undeniably enjoy that status (see, to that effect, Garcia Avello, paragraph 21, and Zhu and Chen, paragraph 20). 41 As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, paragraph 25; and Rottmann, paragraph 43). 42 In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42). 43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. AM –v- SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC) CJSA/1637/2017, CIS/1888/2017 and CH /1889/2017 23 44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. 45 Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

“33.…….if the referring court holds that Article 21 TFEU does not preclude Mrs Alokpa from being refused a right of residence in Luxembourg, that court must still determine whether such a right of residence may nevertheless be granted to her, exceptionally – if the effectiveness of the Union citizenship that her children enjoy is not to be undermined – in light of the fact that, as a consequence of such a refusal, those children would find themselves obliged in practice to leave the territory of the European Union altogether, thus denying them the genuine enjoyment of the substance of the rights conferred by virtue of that status.”

“Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a AM –v- SSWP and City and County of Swansea Council [2019] UKUT 361 (AAC) CJSA/1637/2017, CIS/1888/2017 and CH /1889/2017 26 relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium. Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.”

“…the rights conferred by the Directive are deliberately confined to Union citizens and their family members, as defined in Art. 2(2). (Moreover, pursuant to Art. 7(1)(a)-(c), the Union citizen from whom family members derive their rights must be economically active or self-sufficient [See further para. [85] of LO v SSWP (IS) UKUT 440 (AAC)]). As Art. 3 makes plain, they do not extend to a person (such as the Appellant) who is the family member of a family member (such as [the son]), but is not the family member of the Union citizen with the primary right of residence (such as [the appellant’s son’s father]).”

“Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence of Union citizens and their family members for periods in excess of three months should be subject to conditions.”