Okafor & Ors v Secretary of State for the Home Department

Under Directive 2004/38/EC, the surviving family members of a Union citizen who dies before acquiring permanent residence must use the specific routes in Article 12. Educational residence under Article 12(3) lasts until completion of the children’s studies but does not, by itself, qualify for permanent residence. For Article 16, five years’ residence must be residence obtained through rights under Chapter 3 and in compliance with the Directive. Residence that is merely tolerated, or lawful only under domestic law, is insufficient. A residence card or passport endorsement evidences an existing right but does not create one. Failure to revoke the document or to remove the person cannot generate permanent residence.

The first appellant, a Nigerian national, was married to a Dutch national. Their two children were Union citizens. The family had permission to reside in the United Kingdom under Directive 2004/38/EC, implemented through the Immigration (European Economic Area) Regulations 2006. The mother died in 2007 before acquiring permanent residence. The father and children remained in the United Kingdom, relying on their residence documents, the children’s education and their continuous residence.

Applications for permanent residence were refused. Immigration Judge Lawrence dismissed the appeals, and Senior Immigration Judge Freeman, sitting in the Upper Tribunal, dismissed the onward appeals. The Court of Appeal considered whether Article 12(3), Article 11 documentation, Article 16, or domestic law supplied the required qualifying residence. The central issue was whether five years of residence that was not unlawful, but did not comply with the Directive’s conditions, could create permanent residence.

Lord Justice Thomas gave the leading judgment. Lord Justice Etherton and Lord Justice Maurice Kay agreed. The appeals were dismissed.

1. Article 12 governed the position. The children, as family members who were nationals of a Member State, had to satisfy Article 7(1) before acquiring permanent residence. The father’s retained residence under Article 12(2) remained subject to the specified worker, self-employed, resources, insurance or family-member conditions. He had not shown that he satisfied the resources condition.
2. Article 12(3) was limited. It gave the children a right of residence while enrolled for education and gave an ancillary right to the parent with actual custody until completion of the studies. The right was not a route to permanent residence. The educational rights recognised in Teixeira v London Borough of Lambeth [2010] 2 CMLR 50 arose under a different instrument and did not provide qualifying residence under Article 16.
3. Article 16 required qualifying legal residence. The structure of Directive 2004/38/EC showed that permanent residence was acquired through residence rights conferred by Chapter 3. Residence that was merely tolerated, or simply not unlawful, did not satisfy the requirement of residence in compliance with the Directive. The court followed the approach in Dias v SSHD [2009] EWCA Civ 807 and applied the reasoning in Lekpo-Bozua v London Borough of Hackney [2010] EWCA Civ 909.
4. Documentation was evidential. A residence card or passport endorsement under Article 11 proved a right only according to the underlying legal entitlement. Its existence, continued non-revocation, or the Secretary of State’s failure to remove the person under Article 14 could not create qualifying residence.
5. Domestic law did not assist. Even assuming that lawful residence could in principle arise under domestic law, the unrevoked document could not preserve a right after the Union citizen’s death had ended the relevant underlying entitlement. The concession discussed in Kungwengwe v SSHD [2005] EWHC 1427 (Admin) was not rightly made if it purported to establish that result.

The father and children retained residence under Article 12(3) until completion of the children’s studies, but they had no right to permanent residence under Article 16.

• Court of Appeal (Civil Division): dismissed the appeals on 20 April 2011.
• Upper Tribunal: Senior Immigration Judge Freeman dismissed the appeals on 10 February 2010. Permission to appeal was granted on 15 March 2010.
• Immigration Judge: Immigration Judge Lawrence dismissed the appeals on 27 November 2009.