ECO (Dubai) v M (Ivory Coast)

A third-country national who is the primary carer of a self-sufficient minor Union citizen has a directly effective derivative EU right to enter and reside with that child where this is necessary to make the child’s free-movement rights effective. The right derives from the child’s EU rights, but it is nonetheless a legal entitlement when its factual conditions are met.

Domestic immigration legislation and rules cannot reduce that entitlement. It may be restricted only on applicable EU-law grounds, including public-policy grounds where engaged. The absence of a domestic route under the EEA Regulations or the Immigration Rules does not defeat the derivative right.

The Entry Clearance Officer appealed against a First-tier Tribunal decision allowing M’s appeal against refusal of entry clearance. M, a national of Côte d’Ivoire, was the primary carer of her French-national daughter, C. The family wished to travel from abroad to the United Kingdom, where C would live with her British father and attend school.

The First-tier Tribunal found that C was self-sufficient and insured, and that refusal of an EEA family permit to M would prevent C from exercising her EU free-movement rights. The ECO contended that M could succeed only under the EEA Regulations or the Immigration Rules, and relied on M’s previous overstay.

The central issue was whether EU law itself gave M a derivative right of entry with C, independently of the domestic immigration routes.

1. The ECO’s appeal was dismissed. The First-tier Tribunal made no material error of law in holding that M had a derivative EU-law right to enter and reside in the United Kingdom with C.

2. Under Chen & Others (Free Movement of Persons) [2004] ECJ C-200/02, a young Union citizen’s right of residence would be ineffective if the child’s primary carer could not reside with the child. The right of the carer is derivative, but it is a right when the relevant conditions are fulfilled. Those conditions were met on the findings: C was a Union citizen, had sufficient resources and private health insurance, and M was her primary carer.

3. W (China) and Another v Secretary of State for the Home Department [2006] EWCA Civ 1494 was binding and did not assist the ECO. It confirmed that the child’s and carer’s rights depend on the conditions governing the child’s EU right. In that case the conditions were not met; here they were. Its reference to the parent lacking a personal right of abode meant only that the parent’s entitlement derived from the child’s right.

4. The derivative right arose directly under EU law. The absence of an applicable route in the EEA Regulations or the Immigration Rules could not remove it. Nor could the mandatory refusal provisions of the Immigration Rules apply. Any restriction had to rest on EU-law grounds of public policy, which were not relied upon.

5. The First-tier Tribunal’s decision allowing the appeal stood. The Tribunal directed that M be issued promptly with an EEA family permit.

• Upper Tribunal (Immigration and Asylum Chamber): The ECO’s appeal was dismissed. The First-tier Tribunal’s allowance of M’s appeal was upheld, and an EEA family permit was directed.

• First-tier Tribunal (Immigration and Asylum Chamber): On 23 March 2010, Immigration Judge Grant allowed M’s appeal against refusal of entry clearance on the basis of her derivative EU-law right as C’s primary carer.