W (China) & Anor v Secretary of State for the Home Department

An infant Union citizen’s right to reside under article 18 of the EC Treaty depends on compliance with the conditions in Directive 90/364. A non-EU primary carer has only a derivative right. The child and each accompanying carer must have sickness insurance and sufficient resources to avoid burdening the host state’s social assistance system.

Free treatment through the National Health Service does not satisfy the insurance condition because using taxpayer-funded care creates the burden which the condition seeks to prevent. Resources derived from employment prohibited by domestic immigration law need not be treated as sufficient or stable. A host state need not alter its domestic law to create the resources required before the article 18 right can exist.

The appellants were Chinese nationals who had entered the United Kingdom unlawfully. Their daughter, born in the Republic of Ireland, was an Irish citizen and therefore a Union citizen under article 17 of the EC Treaty. After their asylum claims failed, the parents claimed a right to remain as her carers so that she could exercise her article 18 right of residence.

The Immigration Appeal Tribunal held that the child and both parents needed sickness insurance and sufficient resources under Directive 90/364. The parents lacked insurance, and the father’s unlawful employment did not provide sufficiently stable resources.

The central issues were whether the Directive’s conditions extended to primary carers recognised under Case C-200/02 Chen, whether National Health Service access or social security contributions satisfied the insurance condition, and whether otherwise unlawful employment could provide the resources required to establish the child’s residence right.

1. The appeal was dismissed unanimously. The child’s article 18 residence right and her parents’ derivative rights were subject to the conditions imposed by Directive 90/364. Although a primary carer is not a dependent family member within article 1(2), the child’s residence must not impose a financial burden on the host state. The child and each accompanying carer therefore required sickness insurance and sufficient resources: per Buxton LJ at [6]–[8], with whom Sedley and Dyson LJJ agreed.

2. The absence of sickness insurance for the parents was fatal. Free National Health Service care could not satisfy the condition because its use would create the burden on the host state which the Directive was designed to prevent. National Insurance contributions were not an adequate substitute because the National Health Service was largely tax-funded. The correspondence and paragraph 257C of the Immigration Rules (HC 395) did not waive the EU-law requirement, and domestic rules could not displace it: [9]–[13]. Sedley LJ reserved his position on whether the Directive invariably required private insurance: [26].

3. The Directive’s conditions were preconditions to the existence of an article 18 right in the particular case, rather than conditions arising only after entry. A host state was not required to change its domestic law to make resources available so that an applicant could establish the right on which the claimed displacement of domestic law depended: [16]. Article 2(2) did not assist because an entitlement to employment depended on the child first establishing a right of residence: [18].

4. The father’s employment remained unlawful under section 8 of the Asylum and Immigration Act 1996. The Tribunal was entitled to find that income from employment carrying no lawful prospect of permanence was too ephemeral to establish sufficient resources. The appeal therefore also failed on self-sufficiency: [14]–[16], [23], [27].

5. Case C-60/00 Carpenter did not establish a general rule that domestic law must yield whenever a third-country national’s presence would make Union rights effective. It concerned an independently established Treaty right. Even then, the European Court required a proportionate balance between that right and the competing domestic public interest. No such balancing exercise arose because the child had not first established the conditional article 18 right: [19]–[22].

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2006] EWCA Civ 1494.

2. Immigration Appeal Tribunal: The Tribunal dismissed the parents’ claims. It held that the child and accompanying parents required sickness insurance and sufficient resources, and that income from the father’s unlawful employment was insufficiently stable. No neutral citation is stated.