The Secretary of State for the Home Department v Selwyn Jason Seye & Ors

A Union-citizen child relying on the Chen principle must have sufficient resources and comprehensive sickness insurance. Resources derived from a parent’s illegal employment in the host state cannot establish self-sufficiency.

Further, the binding ratio of Liu and Ors v SSHD [2007] EWCA Civ 1275 prevents reliance on a parent’s lawful employment where the parent’s leave has expired and is continued only by section 3C of the Immigration Act 1971. Earlier Tribunal authority suggesting that all lawful employment by a parent on limited leave is excluded was doubtful, but that wider issue did not require determination.

The Secretary of State appealed against a First-tier Tribunal decision allowing four connected appeals against refusals of residence documents under European Union law. The First claimant was a French-national child. His mother, half-sister and stepfather were Cameroonian nationals.

The First-tier Tribunal decision had been set aside for material error of law, and the Upper Tribunal remade the decisions. The central question was whether the child was a self-sufficient person under the Immigration (European Economic Area) Regulations 2006, so that derivative residence rights could arise for the family under the Chen principle.

1. The Secretary of State’s appeal was allowed and the claimants’ appeals were dismissed. The First-tier Tribunal had materially erred in law and its decision had already been set aside.

2. If the French-national child had been self-sufficient, he would have been a qualified person under regulation 4(1)(c) of the Immigration (European Economic Area) Regulations 2006. His mother and half-sister would then have had derivative residence rights under regulation 15A. The stepfather could not qualify on the same basis because he was not the child’s direct relative or legal guardian.

3. The family’s resources and private medical insurance were, viewed quantitatively, capable of satisfying the resources and comprehensive-sickness-insurance requirements. However, the principal source of income was the stepfather’s employment. He had never shown leave to remain or permission to work. Under W (China) and X (China) [2006] EWCA Civ 1494, income from illegal employment could not establish the child’s self-sufficiency.

4. The mother’s employment had been lawful, but only because her leave was continued by section 3C of the Immigration Act 1971 after expiry of her limited leave. The Tribunal was bound by the ratio of Liu and Ors v SSHD [2007] EWCA Civ 1275, which held that employment in those circumstances could not supply the resources required to begin the claimed period of residence.

5. The Tribunal considered that the broader propositions in MA & Others and ER and Others, excluding even lawful parental employment by persons on limited leave, were doubtful in light of later European authority. That observation was made for future cases and did not alter the binding effect of Liu on these facts.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s determination of 7 November 2011 was set aside for material error of law. The Upper Tribunal remade the decisions and dismissed the claimants’ appeals.

• First-tier Tribunal: Allowed the claimants’ appeals against the refusal of residence documents.