Liu Ors v Secretary of State for the Home Department

A minor Union citizen’s right to reside under Article 18 EC arises only after the conditions imposed by the relevant directives have been met. A necessary non-Union citizen carer may then have a derived right to reside with the child, but that derivative right cannot be used to create the required resources.

A member state is not required to alter its immigration law, or another part of its domestic law, to give a carer a right to work so that the child can satisfy the self-sufficiency condition. Temporary employment that ends with existing leave cannot provide sufficient resources for the residence sought. The student route in Directive 2004/38 did not assist a child in compulsory school education.

The court heard four conjoined appeals from decisions of the Asylum and Immigration Tribunal. The adult appellants were non-Union citizens who sought residence in the United Kingdom as parents and carers of children who were Union citizens. Three children had Irish citizenship by birth in Ireland. Grace Mouloungui was a French national and had attended school in the United Kingdom after joining her father.

The parents relied on the children’s Article 18 EC rights of movement and residence. They contended that current or prospective employment would provide the resources and health insurance required for residence, and that Grace could alternatively rely on her educational status. The central question was whether Union citizenship obliged the United Kingdom to permit a non-Union citizen carer to work in order to satisfy the conditions for the child’s residence.

1. All four appeals were dismissed. The court was bound by W (China) v Secretary of State for the Home Department [2007] 1 WLR 1514. Its analysis of Article 18 EC and the directives was essential to its decision and therefore ratio. A minor Union citizen needs a carer in order effectively to exercise a right of residence, but both child and carer must satisfy the applicable conditions, including comprehensive sickness insurance and sufficient resources.
2. Those conditions are preconditions to the existence of the Article 18 right. They are not limits imposed upon an otherwise existing right. The appellants could not satisfy them. Liu and Grace had no private health insurance. Any insurance available to Ahmed’s daughter through her father’s section 3C employment would end when the proceedings ended.
3. Current employment held under temporary leave could not amount to sufficient resources for the future residence sought. The permission to work would expire at the commencement of that proposed residence. The United Kingdom was not using the adults’ immigration position to remove a right already held by the children. Their inability lawfully to work was instead a factual reason why the resources condition was unmet.
4. Neither Chen [2004] ECR I-9925 nor the authorities concerning migrant workers or cross-border service providers required a different result. In those cases the relevant Union citizen had an independent and existing right of residence. They did not require a member state to confer on a non-Union citizen parent a right to work in order to generate the resources needed to create the child’s Article 18 right.
5. Grace could not rely on Article 7(c) of Directive 2004/38. It concerned further and vocational training, not compulsory school education, and remained subject to the resources condition. No reference to the ECJ was necessary because the applicable jurisprudence was clear.

• Court of Appeal (Civil Division): dismissed all four appeals in [2007] EWCA Civ 1275.
• Asylum and Immigration Tribunal: rejected the residence claims. In Ahmed and Mouloungui it treated the resources argument as circular; in Liu and Wang it followed those decisions. The Court of Appeal held that each decision was correct.