BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v NA (Pakistan) [2015] EWCA Civ 140 (25 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/140.html Cite as: [2015] EWCA Civ 140 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE LANG
UPPER TRIBUNAL JUDGE STOREY
IA/17654/2010
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE SULLIVAN
and
LADY JUSTICE SHARP
____________________
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
|
- and - |
||
NA (PAKISTAN) |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Tom de la Mare QC and Ms Bojana Asanovic (instructed by Wilsons Solicitors LLP) for the Respondent
Richard Drabble QC and Tim Buley (instructed by Bindmans LLP) for the Interveners
Hearing dates: 19TH & 20TH January 2015
____________________
Crown Copyright ©
Lord Justice Sullivan:
This is the judgment of the Court.
Introduction
"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?"
Factual Background
"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
"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……"
The Upper Tribunal's determination
"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
"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…."
(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.
"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."
"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."
Reasons for reference
A further submission
Article 12 of Regulation 1612/68
"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."
"(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
"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".
"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
"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."
(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.
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).
(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.
Reasons for Reference
Questions
(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?