About this case:

• Citation:
  C‑93/18
• Judgment:
  External link
• Court:
  CJEU

In response to a reference under Article 267 of the Treaty on the Functioning of the European Union from the Court of Appeal in Northern Ireland, the CJEU ruled that Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that an EU citizen minor has “sufficient resources” despite their resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit.

Background 

Mrs Ermira Bajratari, an Albanian national, has resided in Northern Ireland since 2012. She is married with three children who were born in Northern Ireland. The first two children obtained a certificate of Irish nationality; however, it was noted that they have never moved or resided in another EU member state.

Mrs Bajratari’s husband held a residence card authorising him to reside in the UK from May 2009 to May 2014 – during this time he worked in various jobs and since the expiry of his residence card he has been working illegally. The only resources available to the family is Mr Bajratari’s income.

In September 2013, 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, relying on her status as the person who is the primary carer of her child, an EU citizen, and maintaining that refusal of a residence permit would deprive her child of the enjoyment of his rights as an EU citizen.

In January 2014, the Secretary of State for the Home Department rejected the application on two grounds:

1. Mrs Bajratari did not have the status of ‘family member’ within the meaning of Directive 2004/38; and
2. Her child did not satisfy the requirement of self-sufficiency provided for in Article 7(1)(b) of Directive 2004/38.

Mrs Bajratari’s appeals against the decision were dismissed in the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber).

Mrs Bajratari then applied for leave to appeal against the decision of the Upper Tribunal to the Court of Appeal in Northern Ireland.

The Court of Appeal in Northern Ireland

In December 2017, the NI Court of Appeal noted the decision of the CJEU in Alokpa (Case C-86/12), in which it was held that “…the expression ‘have’ sufficient resources in a provision similar to Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that it suffices that such resources are available to the Union citizens and that that provision lays down no requirement whatsoever as to their origin…”.

However, the NI Court of Appeal was concerned that Alokpa did not specifically decide the question of income deriving from employment unlawful under the national laws of the member state concerned.

In those circumstances, the NI Court of Appeal referred two questions to the CJEU:

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?

The Court of Justice of the European Union

In response to the request for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (TFEU), the CJEU said it was appropriate to consider the questions together.

Considering Rendón Marín (C‑165/14), the Court said that “Article 21(1) TFEU and Directive 2004/38 confer, in principle, a right of residence in the United Kingdom on Mrs Bajratari’s first two children”.

The Court said that the right to reside is “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect” (NA (C‑115/15) considered). The limitations and conditions include the condition of having sufficient resources not to become a burden on the social assistance system of the host member state during the period of residence, and having comprehensive sickness insurance cover within the meaning of Article 7(1)(b) of Directive 2004/38.

The Court said the condition of sufficient resources did not contain a requirement as to their origin. It also noted 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 also said that interpreting the condition of “sufficient resources” so as not to include income from employment in the State from a parent without a residence and work permit, would introduce “…a further requirement relating to the origin of the resources provided by that parent, which would constitute a disproportionate interference with the exercise of the Union citizen minor’s fundamental rights of free movement and of residence under Article 21 TFEU, in so far as that requirement is not necessary for the achievement of the objective pursued”

In Mrs Bajratari’s case, the Court was satisfied that Mr Bajratari had always been employed in the UK, that tax and social security contributions were paid on his income despite the expiry of his residence card, and that their children had not received social assistance in the UK.

Remarking that a national measure excluding income from unlawful employment from the concept of ‘sufficient resources’ within the meaning of Article 7(1)(b) of Directive 2004/38 would undoubtedly achieve the objective pursued by that provision; the Court said that such a measure, which would allow the member state to refuse an EU citizen minor a right of residence, “despite the fact that those resources have allowed that Union citizen to support himself and his family members for the past 10 years without needing to rely on the social assistance system of that member state, goes manifestly beyond what is necessary in order to protect the public finances of that member state”.

The UK Government relied on the grounds of public policy in order to justify excluding the income derived from unlawful employment from the concept of “sufficient resources” within the meaning of Article 7(1)(b) of Directive 2004/38 – however, the Court said that, when 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, so that its scope cannot be determined unilaterally by the member states without being subject to control by the EU institutions” (CS (C‑304/14) considered).

The Court added that “the concept of ‘public policy’ presupposes, in any event, the existence… of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. In the present case, the conditions required to justify the limitation of the children’s right of residence were not satisfied.

In answer to the questions referred, the Court said that Article 7(1)(b) of Directive 2004/38 “must be interpreted as meaning that a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host member state during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit”.

• by Róise Connolly for Irish Legal News