The Court of Justice of the European Union (CJEU) has ruled that an EU citizen minor has “sufficient resources” not to become an unreasonable burden on the UK social assistance system, even though those resources came from the unlawful employment of his father. In doing so, the Court interpreted “sufficient resources” in Article 7(1) (b) of Directive 2004/38 to include income made without a lawful work permit.
Mrs. Ermira Bajratari is an Albanian national who has lived in Northern Ireland since 2012 with her husband. The couple have three children who were born in Northern Ireland, two of which have Irish nationality. Mrs. Bajratari’s husband held a lawful residency card and work permit from 2009 until 2014. On the expiry of this permit he continued to work illegally. After the birth of her first child, Mrs Bajratari applied to the Home Office for recognition of a derived right of residence under Directive 2004/38, based on her status as a primary carer of an EU citizen minor. She argued that refusing such recognition would constitute depriving said minor of the full enjoyment of his rights as an EU citizen.
The Home Office rejected this application on two grounds: that she did not come within the meaning of family member for the purposes of the Directive and that the child could not satisfy the self- sufficiency requirement in the same Directive. The case was similarly dismissed by the First-tier and Upper Tribunal of the Immigration and Asylum Chamber before Mrs. Bajratari applied for leave to appeal the decision to the Court of Appeal in Northern Ireland. The Court of Appeal considered the recent CJEU case of Alokpa where the Court said that to “have sufficient resources” must be interpreted as funds being available, without reference to their origins. The Court of Appeal was nevertheless uncertain as to whether this interpretation would apply to income derived from unlawful employment and so referred this question to the CJEU, under the Article 267 preliminary reference procedure.
In its judgment, the Court noted that Directive 2004/38 sets out the limitations and conditions on an EU citizen’s right to reside in another Member State, for example, having sufficient resources not to be a burden on the social assistance system of a State. The Court went on to emphasise that this condition was silent as to the origins of such resources, saying that “it cannot be concluded from the wording of Article 7(1) (b) of Directive 2004/38 that only resources derived from employment occupied by a Union citizen minor’s third-State national parent pursuant to a residence card and work permit can be taken into consideration for the purposes of that provision”.
The Court went on to note that, as the freedom of movement is a fundamental principle of EU law, it must be interpreted with reference to the principle of proportionality, meaning that limitations on fundamental rights must be appropriate and necessary to attain the objective pursued, which in this case was the protection of public finances. The Court went on to say that a UK national measure excluding income from unlawful employment from the definition of “sufficient resources” would allow a Member State to deny a right of residency, even though the person in question is not a burden on the social assistance system. Such a measure would go beyond what is necessary to protect a Member State’s public finances and would constitute a disproportionate interference with the right of an EU citizen minor to exercise his fundamental right of free movement and residency under Article 21 TFEU.
In response to the UK argument that a national measure excluding this kind of income could be justified on public policy grounds, the Court said that, when public policy is used “as a justification for derogating from the right of residence of Union citizens or members of their families, the concept of ‘public policy’ must be interpreted strictly”. In any case, the Court went on to say that public policy grounds are invoked in cases involving a serious threat affecting one of the fundamental interests of society, which did not apply in this case.
Click here for the full judgment.
Click here for the press release from The Aire Centre, which intervened in the case.