GC (China) v Secretary of State for the Home Department

A third-country national’s right to reside as the family member of a Union citizen is derivative of, and limited to, the Union citizen’s exercise of free-movement rights. It enables a family member to accompany or join the Union citizen in a host Member State; it does not create a freestanding right to family reunion.

Where a national returns to the state of his or her own nationality, entry and residence are governed by domestic law unless EU law applies through an established family unit returning from another EEA state. Neither Article 39 of the EC Treaty nor an analogy with free-movement rights can create a derivative residence right where there is no relevant EU movement.

The appellant, a Chinese citizen who had remained unlawfully in the United Kingdom, married a British citizen. She subsequently worked in the Republic of Ireland and returned to the United Kingdom. The appellant remained in the United Kingdom throughout and applied for a residence document as her spouse.

The Asylum and Immigration Tribunal dismissed his appeal against the refusal of that application: IA/014165/2006. The appellant sought permission to appeal to the Court of Appeal. The central question was whether his wife’s return from Ireland gave him a directly enforceable EU-law right to reside in the United Kingdom.

1. Permission to appeal was refused. Sedley LJ, with whom Wilson and Ward LJJ agreed, held that the proposed appeal was unarguable. The appellant had never left the United Kingdom. He had therefore neither accompanied nor joined his wife when she entered it, and had exercised no derivative freedom of movement or establishment.
2. The Citizens Directive (2004/38/EC) confers residence rights on third-country family members only as an incident of the Union citizen’s movement to, and residence in, a host Member State. Its purpose is to make free movement effective by allowing the worker to bring immediate family members. It does not establish a freestanding right of family reunion. The reasoning in Case C-291/05 and the decision of this court in [2008] EWCA Civ 13 supported that conclusion.
3. A British citizen returning to the United Kingdom does not require an EU right to enter her own country. Her entry, and any consequential claim by her spouse, were matters of domestic law unless the conditions of Regulation 9 of the Immigration (European Economic Area) Regulations 2006 were met. Those conditions required, in substance, a family unit which had lived together in another EEA state before the British citizen’s return. They were not met.
4. Article 39 of the EC Treaty did not state a sufficiently specific right capable of assisting the appellant. Nor could such a right be constructed by extension or analogy: rights derived by third-country nationals from a Union citizen’s rights must be found in EU law itself.
5. The court considered that [2003] ECR I-9607, if material, did not support a distinction based on the appellant’s continuing unlawful presence. [2003] 2 WLR 267 and [2003] 1 WLR 1073 concerned cross-border services or movement by Union citizens and were inapplicable. The Article 8 argument was not pursued as an independent basis for relief.

• Court of Appeal (Civil Division): Permission to appeal was refused in [2008] EWCA Civ 623.
• Asylum and Immigration Tribunal: The tribunal unanimously dismissed the appellant’s appeal against refusal of a residence document: IA/014165/2006.