MDB & Ors v The Secretary of State for the Home Department

A child’s residence right under Article 12 arises where the child lived with a parent in the host Member State while that parent was employed there. The right is independent of the parent’s later residence or worker status, but Article 12 requires actual employment. A parent who merely sought work, although treated as a worker for free-movement purposes during a limited period, has not thereby been employed for Article 12.

An Article 12 right begins when the child starts education, not at birth or arrival. If an appeal against refusal of a permanent residence card fails on permanence, the tribunal must still determine whether Community-law rights require recognition of an extended residence right.

The appellants were an Argentinian mother and her two Italian-national sons. They appealed against the refusal of permanent residence cards. An Immigration Judge dismissed their appeals, finding that the Italian father had not exercised Treaty rights and rejecting claims based on Regulation 15(1)(b), Article 12 of Regulation 1612/68, and Article 8.

On reconsideration, the Upper Tribunal accepted that the father had been a jobseeker and thus a worker for free-movement purposes in 2002–2003. It considered whether that status engaged the children’s Article 12 education-based residence rights, whether their residence could found permanent residence, and whether dismissal of the Article 8 claims involved legal error.

1. Appeals dismissed. The Immigration Judge erred in finding that the father had not exercised Treaty rights in 2002–2003. He had been granted residence documentation as a jobseeker and, under Antonissen, was then a worker for Community-law purposes. The error was nevertheless immaterial.

2. Article 12 of Regulation 1612/68 does not require the relevant parent to remain a worker, or even to remain resident in the host State. Following Baumbast and London Borough of Harrow v Ibrahim, it is sufficient that the child lived with a parent while at least one parent resided there as a worker.

3. However, Article 12 applies to children of a Member State national who is or has been employed in the host State. A person’s limited status as a jobseeker may make that person a worker for free-movement purposes, but does not establish that the person has been employed. The father had never worked during the 2002–2003 period. The children therefore acquired no Article 12 right through it.

4. The father’s ten-week, eight-hours-per-week employment in 2007 could properly be treated as insufficiently genuine and effective on the evidence. His later jobseeking did not establish worker or jobseeker status because the Immigration Judge permissibly found that he was not genuinely seeking employment. The residence periods fell far short of the five years required by Regulation 15(1)(b).

5. The Tribunal further observed that an Article 12 right begins only when the child enters education. It also observed that a tribunal considering refusal of a permanent residence card must consider any established extended residence right. The Article 8 assessment properly addressed the family as a whole. The Immigration Judge’s dismissal accordingly stood.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, dismissed the appeals and upheld the Immigration Judge’s decision.
• Immigration Judge: Determination notified on 6 March 2009. The appeals against refusal of permanent residence cards were dismissed. No citation was stated.