Olaitan Ajoke Alarape & Anor v The Secretary of State for the Home Department

A child’s right of access to education under Article 12 of Regulation (EEC) No. 1612/68 extends to a stepchild of a migrant worker. The right continues while the child remains in full-time education, notwithstanding parental divorce, the worker’s cessation of employment, the child’s age over 21, or lack of dependency.

A parent’s derived right depends on being the adult student’s primary carer. Where the scope of primary carer, including the required presence and care after adulthood, cannot be determined with complete confidence, a preliminary reference should be made to the Court of Justice. The same may be required to determine whether continuous Article 12 residence counts towards permanent residence under the Citizens Directive.

The Nigerian appellants, mother and adult son, appealed the refusal of permanent residence cards. The First-tier Tribunal had dismissed their appeals, finding insufficient proof that the mother’s former French husband had exercised Treaty rights for the required continuous five-year period.

Before the Upper Tribunal, the son relied on Article 12 of Regulation (EEC) No. 1612/68. He had been in full-time education since the relevant EEA national’s employment began and intended to commence doctoral study. The issues were whether he was a “child” for Article 12 purposes, whether his mother retained a derived right as his primary carer, and whether Article 12 residence could found permanent residence under the Citizens Directive.

1. Preliminary reference ordered. The Tribunal could not finally determine whether the First-tier Tribunal had made a material error of law, because answers from the Court of Justice were required. Further consideration of the appeals was adjourned pending that ruling.

2. The appellants failed to establish permanent residence through the former husband’s exercise of Treaty rights. Although the First-tier Tribunal had overlooked evidence that he held a residence document from February 2004, that evidence only extended the proved period of employment to April 2006. It remained well short of five years. The appellants bore the burden of proving the relevant exercise of Treaty rights, and a residence document did not itself prove continuation of the underlying right throughout its period of validity.

3. The son was a child within Article 12 of Regulation (EEC) No. 1612/68. Article 12 includes a stepchild. His entitlement was not defeated by his age, lack of dependency, his parents’ divorce, or the EEA national’s cessation of work. Since he remained in full-time education, he continued to have an EU right of residence.

4. The mother’s position could not be resolved confidently. The Court of Justice authorities required an adult child to continue to need the parent’s presence and care to complete education, but did not define the required quality of dependency, shared residence, physical presence, or emotional support. The Tribunal therefore referred questions concerning the meaning of primary carer.

5. A further reference was necessary on whether more than five years’ lawful Article 12 residence can satisfy the permanent-residence requirements of the Citizens Directive, notwithstanding the approach in Okafor & Ors v Secretary of State for the Home Department [2011] EWCA Civ 449.

• Upper Tribunal (Immigration and Asylum Chamber): ordered a preliminary reference to the Court of Justice and adjourned further determination of the appeals.
• First-tier Tribunal: dismissed the appeals in a determination notified on 7 June 2010, finding that the appellants had not proved the EEA national’s continuous five-year exercise of Treaty rights.