The Secretary of State for the Home Department v Low Poh Bee & Anor

A non-EEA national whose residence is derived from an EU citizen child’s right to reside does not acquire a permanent right of residence merely through that derivative status. The derivative right exists only while it is needed to give effect to the child’s EU residence rights.

An implied refusal to confirm permanent residence may be an EEA decision appealable under regulation 26(1) of the Immigration (European Economic Area) Regulations 2006. National administrative classification of a directly enforceable EU right cannot reduce its scope.

The Secretary of State appealed from First-tier Tribunal Judge Fox’s decision of 16 May 2012. The judge had held that Malaysian parents, who were the primary carers of Irish citizen children living in Northern Ireland, had both an appealable decision and a permanent right of residence under EU law.

The parents’ residence had originally been recognised because their self-sufficient EU citizen children required their presence. The Secretary of State’s letter declined to recognise them as family members with EU permanent-residence rights and granted further limited leave instead.

The Upper Tribunal considered whether that letter was an appealable EEA decision and whether a primary carer’s derived right of residence could mature into permanent residence.

1. Appeal allowed. The First-tier Tribunal was correct that it had jurisdiction. Although the Secretary of State’s letter was not an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002, it implicitly refused the requested confirmation of permanent residence. It was therefore an EEA decision concerning entitlement to a document certifying permanent residence, appealable under regulation 26(1) of the Immigration (European Economic Area) Regulations 2006.

2. The parents’ residence rights, recognised following M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC), were directly enforceable EU rights derived from their children’s rights. The fact that national practice had dealt with them under the Immigration Rules did not alter their EU character. The later 2012 amendments clarified the appeal route but did not determine the pre-amendment jurisdictional issue.

3. The children, as Irish nationals residing in the United Kingdom rather than a state of their nationality, fell within the Directive 2004/38/EC. Their birth in the host state did not prevent reliance on EU residence law. On the unchallenged finding of six years’ lawful self-sufficient residence, they appeared entitled to permanent residence under article 16(1).

4. The parents did not qualify for permanent residence under article 16(2). They were not their children’s dependent relatives in the ascending line: the factual dependency ran in the opposite direction. Chen showed that a carer’s right is to reside with the child for the duration of the child’s residence, not necessarily permanently. Regulation 15(1A), inserted in 2012, confirmed that residence based on a derivative right does not count towards permanent residence.

5. The First-tier Tribunal therefore materially erred in granting the parents permanent residence. The Upper Tribunal remade the decision by dismissing their appeals.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The Tribunal upheld the finding that there was an appealable EEA decision, but set aside the finding that the parents had permanent residence and remade the appeals by dismissing them.
• First-tier Tribunal: Judge Fox, decision promulgated 16 May 2012, found jurisdiction and allowed the parents’ appeals on the basis that they had acquired permanent residence under the Immigration (European Economic Area) Regulations 2006.