On 2 October 2019, the Court of Justice of the European Union (CJEU) made its preliminary ruling requested by the Court of Appeal in the case of C-93/18 Bjaratari.
The facts in Bjaratari below provide a useful background to the case and the legal issues:
13 May 2009 Mr Bajratari an Albanian national, is issued with an EEA residence card valid to 12 May 2013, based on his relationship with a British citizen which ended in 2011
2011 Mr Bajratari leaves the UK and marries Mrs Bajratai, also an Albanian national
2012 Mr & Mrs Bajratari enter Northern Ireland
9 September 2013 Mrs Bajratari applies to the Home Office for a derivative right of residence through one of their Irish children - the couple had three children together, two of whom were at the time Irish
28 January 2014 Mrs Bajratari’s application for a residence card is rejected on two grounds, first on the basis that she is not a family member and second, she did not satisfy the requirement to be self-sufficient through Directive 2004/38
The case was appealed through the UK appellate system and then referred to the CJEU by the Court of Appeal on two issues:
(i) can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources
(ii) if yes, can the directive be satisfied where the employment is……unlawful
The UK Government argued the case should be discontinued on the basis that two of Mr & Mrs Bajratari’s children had been deprived of their Irish nationality, but as the cases were still under appeal in Ireland, the CJEU decided it had jurisdiction to proceed.
The CJEU observed that Mr & Mrs Bajratari’s children had a right to reside under Article 21(1) TFEU ‘but that conditions could be laid down namely, the requirement to have sufficient resources.’ The court highlighted that it had previously decided EU law did not lay down any requirements as to the origin of the resources and the children could benefit from the resources obtained through employment by the parent, and the only question was whether reliance could be placed on income from unlawful employment.
The CJEU referred to Article 7 1 (b) of the Directive as it only stated that sufficient resources were required so as not to become a burden on the state – and, no other condition. It noted that freedom of movement was a fundamental right and although a state could seek to place conditions or limitations, any such action would need to be proportionate. The court presented the argument that where a minor seeks to rely on the income from unlawful work of a parent, depriving that child from the resources would place it at ‘risk’ and the likelihood of he/she become a burden on the state would increase.
The UK government also ran a public policy argument against the reliance on resources obtained by a third country parent from unlawful work, but the CJEU rejected and pointed out that public policy ‘concepts’ must be strictly interpreted and could not be ‘unilaterally’ determined by a member state and any derogation had to be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ but no such risk was present.
This is another recent landmark judgement by CJEU. It demonstrates how the CJEU is willing to apply perhaps a more liberal approach where there is an alleged infringement of rights relating to free movement. It is only likely to entertain public policy arguments where the imposition of restrictions is proportionate and justified. The decision will be of benefit to third country nationals with children who are either EU citizens or were born in the EU. Although the UK will in due course leave the European Union, this judgement will have relevance through and beyond the proposed transitional period and unless there is a hard Brexit.