Child is deemed self-sufficient if supported by parent working without work permit

The Court of Justice of the European Union has decided that a child is self-sufficient in EU law even if supported only by the earnings of a parent who does not have permission to work ( C-93/18 Bajratari).

The case concerned an Albanian family living in Northern Ireland where a man had held a residence card enabling him to work. He continued to do so even after it expired.

He had been joined by his wife and they had three children together, all born in Northern Ireland. Two of the children had obtained certificates of Irish citizenship, meaning that they were EU citizens.

The wife and mother applied for a residence card of her own based on derivative rights of residence, arguing that her continued presence in the United Kingdom was necessary if her two EU citizen children were to remain within the EU. Her argument was based on the case of  C-200/02 Zhu and Chen, which required her to show that her EU citizen children were self-sufficient.

The family was supported by the father’s earnings, but these earnings were unlawful. The question for the court was whether the children were “self-sufficient” in EU law and therefore whether the parents might derive an EU law right of residence from the children.

The application was rejected by the Home Office and appeals to the first-Tier and Upper Tribunals were unsuccessful.

The Court of Justice held:

“a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit”.

The court emphasised that the family in this case has no recourse to public funds at all and that the father had been paying National Insurance and other tax contributions on his earnings.

Posted on Oct 02, 2019.

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