Ali v Secretary of State for the Home Department

European Union citizenship does not, by itself, confer an unfettered right of residence in another Member State. The right is subject to Treaty limitations and measures adopted to give effect to them, including requirements concerning sufficient resources and sickness insurance. A child’s receipt of primary education does not create an independent right of residence under Article 18 merely because the child is a Union citizen. A parent obtains no derivative residence right where the child has no underlying right. A job-seeker must show genuine efforts to obtain employment and genuine chances of engagement. The ordinary civil standard of proof applies to disputed status issues relevant to residence rights; the lower standard applicable in asylum and Articles 2 or 3 cases does not transfer to them.

The appellant, a Somali national, appealed from an Immigration Judge’s dismissal of his appeal against refusal of his asylum application. Permission to appeal was limited to European Community residence rights and Article 8 of the European Convention on Human Rights.

The appellant relied on an alleged marriage to a Dutch citizen, the alleged partner’s status as a worker, and his Dutch-national son’s attendance at primary school. He argued that the child had a residence right under Article 18 of the Treaty and that he consequently had a derivative right to accompany him. The central issues were the applicable standard of proof, worker status, the effect of primary education on Article 18 residence rights, and the Article 8 claim.

1. Appeal dismissed. The court upheld the Immigration Judge’s findings and conclusion that removal would not breach Article 8 of the European Convention on Human Rights.
2. The ordinary civil standard of proof applied to the disputed question whether the appellant and Mrs Abdi were married. The lower standard used in asylum and Articles 2 or 3 cases did not apply to a status issue relevant to European Community or domestic residence rights. In any event, the adverse credibility findings and absence of corroborating evidence made the result the same under either standard.
3. Mrs Abdi was not a worker for the purposes of European Community law or the Immigration (European Economic Area) Regulations 2000. A person need not be in employment at the relevant time, since the category includes job-seekers and certain analogous categories. A job-seeker must show that employment is genuinely being sought and that there are genuine chances of engagement. The evidence entitled the Immigration Judge to find that Mrs Abdi had never sought employment. Pregnancy and childcare responsibilities could properly be considered in assessing credibility.
4. The Dutch-national child had no right of residence merely because he was receiving primary education in the United Kingdom. Article 18 was subject to Treaty limitations and measures adopted to give effect to it. The relevant Directives showed that residence rights were not unfettered and could be conditional on sufficient resources and sickness insurance. Baumbast v Secretary of State for the Home Department [2002] ECR 1 – 7091 rested on the parent’s Article 39 worker status, not on an independent Article 18 right arising from education.
5. R v Secretary of State for the Home Department, ex parte Vitale [1996] All ER (EC) 461 was binding. Its conclusion that Article 18’s predecessor did not confer an unqualified right of residence was essential to that decision, not obiter. Trent Taverns Limited v Sykes [1999] 11 Admin. LR 548 did not remove the ordinary rule of precedent; absent a reference to the European Court of Justice, this court had to follow its earlier decision.
6. There was no need for a reference to the European Court of Justice because the position in European law was clear. The appellant therefore had no residence right under European Community law or the Immigration (European Economic Area) Regulations 2000, and no derivative right as the child’s parent. The appeal was dismissed.

1. Court of Appeal (Civil Division) [2006] EWCA Civ 484: appeal dismissed. The court upheld the Immigration Judge’s dismissal of the appellant’s appeal against refusal of his asylum application, insofar as the permitted grounds concerned European Community residence rights and Article 8.
2. Asylum and Immigration Tribunal, Immigration Judge Miss J Grimmett, appeal number CC/27423/2003, 26 August 2005: appeal against the Secretary of State’s refusal of the asylum application dismissed, including the residence-rights and Article 8 claims.