Clarification on Chen conditions

[Ben]

A question please, for those in the know. I ask on behalf of a friend of mine.

My friend is living / working in Ireland and has done so for three years, under a work permit. He lives with his wife and three children (all three children are under 18 ). All are Malaysian citizens. The wife has just become pregnant. The baby will be an Irish citizen by nature of it's birth.

My question is, after the baby is born, can the family move to the UK using the Chen conditions?

I understand that in the Chen case, only the primary carer (Mrs Chen) was granted residency. But what about Mr Chen and their first child (who was a PRC citizen)? In the case of my friend, his wife would be considered the primary carer, but what about my friend himself and the other three children?

I've have researched as much as I can, but I'm at loss finding out what happened to the residency status of Mr Chen and the first child.

[avjones]

The crucial point about Chen is that the parents were self-supporting. You can't piggyback on a child's EU nationality in order to get permission to work.

[Ben]

The crucial point about Chen is that the parents were self-supporting. You can't piggyback on a child's EU nationality in order to get permission to work.

I see. So Mrs Chen was given permission to reside in the UK in order to look after her daughter, but not given permission to work. Is that right?

[avjones]

It's likely that she would have been allowed to work, as the relative of a person exercising Treaty Rights.

But the crucial point is that to qualify as a person execising Treaty Rights, the EU citizen has to be self-supporting.

You can't make an application to remain on the grounds of relationship to an EU national, saying that once granted permission to live and work, you will be self-supporting.

Does that make sense?

[Ben]

It's likely that she would have been allowed to work, as the relative of a person exercising Treaty Rights.

But the crucial point is that to qualify as a person execising Treaty Rights, the EU citizen has to be self-supporting.

You can't make an application to remain on the grounds of relationship to an EU national, saying that once granted permission to live and work, you will be self-supporting.

Does that make sense?

It does make sense, and thank you for your reply. But I'm still confused. I thought that the court decided that residency would be granted to Mrs Chen and her baby, on the basis that the baby was an Irish citizen, and that not granting residency for Mrs Chen would be prohibiting the baby from exercising her EU treaty rights. Is this not the case?

[avjones]

That is the case. But the baby had to be exercising Treaty Rights, namely, it had to be self-sufficent (it obviously couldn't be a worker, student, etc).

[Ben]

That is the case. But the baby had to be exercising Treaty Rights, namely, it had to be self-sufficent (it obviously couldn't be a worker, student, etc).

Thanks for your reply. So Mrs Chen's baby was self-sufficient. The baby was taken care of by her mother and did not make use of public funds. That makes sense. But what about Mr Chen and their other daughter? Were they also granted residence in the UK?

[avjones]

For example, the matter has been considered by the Court of Appeal in W(China) and X(China) [2006] EWCA Civ 1494.


The facts in that case were very similar:

The matter before the IAT and before this court concerned the position of Q, and the effect of Q's status on the right of W and X to remain in this country. At the time at which Q was born the Republic of Ireland applied the jus soli in nationality issues, with the result that anyone born in the Republic (or even in that part of the United Kingdom that is Northern Ireland) is a citizen of the Republic, irrespective of their parents' nationality; status; or length of residence and lack of intention to remain in the Republic. Q is therefore a citizen of the Republic and thus also, by article 17 of the EC Treaty, a citizen of the European Union [EU]. Put shortly for the moment, W and X assert that since Q cannot assert her rights of free movement within the EU without their assistance, they are entitled to bring her to the United Kingdom for that purpose, and to stay here, even though absent those considerations their presence in this country would be illegal under English domestic law.

The Court went on to note that the parents had no independent right to work in the UK, other than as Chen-style guardians of the baby.

It said that:

As interpreted by the ECJ in Chen, the article 18 right of Q and the associated right of her custodians can only be lawfully asserted under the strictly limited conditions imposed by Directive 90/364. Those conditions are pre-conditions not merely to the exercise but also more fundamentally to the existence of the right in any particular case: article 18 stating in terms that "the right" to move and reside is subject to the limitations and conditions laid down in, e.g., Directive 90/364. The right accordingly does not exist if Q does not have access to the relevant resources. There is no suggestion that under article 18 the host state is obliged to take positive steps to make resources available to an entering EU citizen: Mr Gill understandably drew back from any suggestion that the state would be obliged to provide support for a custodian without resources in the shape, for instance, of disablement benefit. By the same token, the state is not obliged to adjust its domestic law in order to make available to the EU citizen resources that would not otherwise be available to him, so that he can fulfil the pre-condition to the existence in his case of the article 18 right: the right which has to exist before he can require the state to adjust its domestic law in deference to it.

The concurring judge stated that:

Neither the child nor the parents can lawfully work here, unless - and Mr Gill QC contends that this is the case - the child's status makes it unlawful to deny the parents the right to work. There would be force in this argument if the child herself had a Treaty right to work here; but she has none, and her parents cannot therefore claim a derivative right to work. In this regard they are not in the same position as the claimant in Chen, who had resources originating in China which made her, and thereby the child, self-sufficient in the UK. Mr Gill's argument on self-sufficiency, if sound, would have to apply to any EU citizen seeking entry under Art. 18 EC and would defeat the prior conditions envisaged by the Article itself and explicitly enacted by the Directive.

I have no idea what happened to Mr. Chen and the other daughter - but I imagine they would have been granted leave in line with the mother and EU citizen.

[Ben]

Thank you again, avjones, for your detailed reply. This info is very useful.

From what I can gather from the case you exampled, the main differences between that case and the Chen case, was that in the Chen case Mrs Chen was self-sufficient (and thus so was her baby) - they had financial resources from their country of origin - Mrs Chen had no need to work in order to provide for her baby. However in the case you exampled, the parents (and thus the baby), were not self-sufficient - they were not able to provide for themselves without the parents engaging in employment.

Have I got that right?

[avjones]

Exactly so.

So the parents in your case could move in they could show they (and therefore the baby) were self-sufficent.

[Ben]

Exactly so.

So the parents in your case could move in they could show they (and therefore the baby) were self-sufficent.

Perhaps a strange question, but how would one go about showing that you were self-sufficient? I'm sure that it's not as simple as showing a rather large bank balance, or else the parents involved in the case you describe would surely have done that.

[Docterror]

It's likely that she would have been allowed to work, as the relative of a person exercising Treaty Rights.

Can you please clarify that? AFAIK only 'dependant' relatives of the EEA nationals are allowed to work, and not the 'carer' relatives and the UK is very distinct in making the difference between the two.

One of the key issues of the Chen ruling was that it only gave the right of residence as a carer for the EEA child. If the resources needed for the self-sufficiency of the EEA child is to be taken into account, it will be done only if the parent/s is on a work permit or self-employed. Parents of the EEA child will not be allowed to work as per as the UK rules and the restriction will be put on their Residence Permit as well.

I do not know about mr. Chen and the fellow siblings, but people in a similar situation with the same relation with the EEA child will be allowed to come and settle in the UK as per as 257C of the rules.

[sakura]

It's likely that she would have been allowed to work, as the relative of a person exercising Treaty Rights.

Can you please clarify that? AFAIK only 'dependant' relatives of the EEA nationals are allowed to work, and not the 'carer' relatives and the UK is very distinct in making the difference between the two.

One of the key issues of the Chen ruling was that it only gave the right of residence as a carer for the EEA child. If the resources needed for the self-sufficiency of the EEA child is to be taken into account, it will be done only if the parent/s is on a work permit or self-employed. Parents of the EEA child will not be allowed to work as per as the UK rules and the restriction will be put on their Residence Permit as well.

I do not know about mr. Chen and the fellow siblings, but people in a similar situation with the same relation with the EEA child will be allowed to come and settle in the UK as per as 257C of the rules.

But I thought that Mrs. Chen was only applying for herself, so that Mr. Chen and the first child would not qualify as there is no rule about family members applying from outside the EEA using the Chen case?

I guess maybe we should contact her lawyers and find out what happend to the family!

[Docterror]

But I thought that Mrs. Chen was only applying for herself, so that Mr. Chen and the first child would not qualify as there is no rule about family members applying from outside the EEA using the Chen case?

As Chen's case was focused on Mrs Chen and the EEA child, and it is the case that everyone knows and not the subsequent biography, I guess we will have to contact them for further info. But the changes brought in by the case modified the above mentioned rules which currently states:-

.

Requirements for leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child
257C. The requirements to be met by a person seeking leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child are that the applicant:

(i) is:

(a) the primary carer; or

(b) the parent; or

(c) the sibling,

of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person; and

(ii) is living with the EEA national or is seeking entry to the United Kingdom in order to live with the EEA national; and

(iii) in the case of a sibling of the EEA national:

(a) is under the age of 18 or has current leave to enter or remain in this capacity; and

(b) is unmarried and is not a civil partner, has not formed an independent family unit and is not leading an independent life; and

(iv) can, and will, be maintained and accommodated without taking employment or having recourse to public funds; and

(v) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

In this paragraph, "sibling", includes a half-brother or half-sister and a stepbrother or stepsister

.

So, any parent and even half-siblings, as long as they are below the age of 18 are allowed to join the EEA self-sufficient child. Please note that they do not have to be in the EU to apply.

While (iv) of the rules do state that the self-sufficiency is to be proved without taking up employment, the ECIs make it clear that the income from a work permit employment or a self-employment is acceptable as the right of employment in this case does not stem from the EU route.