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Chen parents, self-sufficiency and illegal work - request for Preliminary Ruling

The decision in Chen C-200/02 established that self-sufficient EEA national children have the right to be accompanied by their primary carer, where they would be unable to remain in the host Member State if the primary carer were required to leave. This has been incorporated into the EEA Regulations at regulation 16. Such persons have a derivative right to reside and may apply for a Derivative Residence Card.

The Court of Appeal in Northern Ireland has recently made a referral to the Court of Justice of the EU for a preliminary ruling on the meaning of ‘self-sufficiency’ in the case of Bajratari C-93/18. The AIRE Centre intervened in the matter as a third party.

The questions referred are as follows:

  1. 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?
  2. If ‘yes’, can Article 7(1) (b) be satisfied where the employment is deemed precarious solely by reason of its unlawful character?

What is ‘self-sufficiency’?

The EEA Regulations 2016 define a self-sufficient person (in line with the Directive) at Regulation 4(c) as a person who has:

  • sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence; and
  • comprehensive sickness insurance cover in the United Kingdom

Relevant case-law

The referring court considers there to be a potential conflict between European case law and the position in the UK, which requires clarification from the CJEU.

In Chen C-200/02, the CJEU made it clear that it is sufficient for the nationals of Member States to ‘have’ the necessary resources and that there is no requirement whatsoever as to their origin (see paragraphs 30-33). This interpretation was upheld in the more recent CJEU decision of Alokpa C-86/12 where the Court reiterated that there was no requirement as to the origin of the resources available to the EEA national in order to establish self-sufficiency (paragraph 27). The example is given that the resources could be from a national of a non-EEA country. Neither of these decisions directly considers the issue of income derived from unlawful.

In the case of W (China) and X (China) [2006] EWCA Civ 1494 the Court of Appeal held that income derived from employment of the Union citizen child’s parent that is illegal cannot create self-sufficiency of the child. This was on the basis that it exposed the employer and parent to criminal sanctions and the employment and income derived from it was therefore ‘ephemeral in nature’ with ‘no proper or lawful prospect of permanence’.

The Home Office position, as set out in the current version of its guidance on Derivative Rights of residence is in line with the Court of Appeal decision. The guidance states:

‘A child may show that they are self-sufficient by relying upon the income of their primary carer. However, any work undertaken in the UK will only be considered acceptable where this is lawful employment’  

This approach may be found to be incompatible with directly effective EU law. In such circumstances, pending the ruling of the CJEU, it should not be followed or at least, pending appeals on this matter should be stayed until there is a ruling (see analysis by Alex Papasotiriou regarding pending preliminary rulings in a previous blog).

Is the Chen parent’s employment unlawful?

Prior to considering whether unlawful employment can create self-sufficiency, a finding must be made that the employment is, in fact, unlawful. A non-EEA national with a right to reside is entitled to take up employment in a Member State regardless of whether they have been issued with residence documentation.

The Home Office guidance directs caseworkers that:

‘You must…consider whether the EEA national child was self-sufficient before the primary carer started employment in a Chen capacity. This is because the EEA national child must be self-sufficient first in order for the primary carer to derive a right of residence, and so be able to work lawfully in the UK.’

It considers the situation where the parent has leave to remain under the Immigration Rules which permits them to work, or where they have already been recognised to have a derivative right of residence. In these situations, lawful employment can establish the child’s self-sufficiency. It is arguable that the position is broader, and that lawful employment during the initial right to reside of three months can also create a situation of self-sufficiency.

Both the EEA national child and the child’s parents, as direct family members, have an initial right of residence for three months which is not subject to any further limitations or formalities. This means that the parent is lawfully able to take up employment, and upon the expiry of the three month period, the child may ‘have’ sufficient resources available to them such that their primary carer parent is able to derive a right of residence.

This creates a circular situation in which the parent’s right to work is dependent on accompanying their child, and their ability to work continues to sustain the child’s right to reside, and their own derived right. However, this appears to be permissible as a matter of EU law.

Even if this interpretation proves to be a step too far, further clarification from the CJEU on whether income derived from the ‘illegal work’ of Chen parents can be relied on is to be welcomed. A more generous interpretation could have significant consequences for Chen parents and their dependants.

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