The Court of Justice of the European Union has found that a child is self-sufficient in EU law even if supported only by the earnings of a parent who is working without permission to do so. The case is C‑93/18 Bajratari.

The case involved an Albanian family living in Northern Ireland where the father and husband had held a residence card enabling him to work. He had ceased to meet the requirements for that card but it had not been revoked and he had carried on working. He continued to do so even after it did eventually expire.

In the meantime 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 tribunals presumably followed earlier case law (see below) in which it was held that “boot strapped” self sufficiency was not genuine: a parent could not in effect rely on their own unlawful earnings in order to generate a right of residence via their children and thereby render their earnings lawful.

For reasons that are not apparent in the judgment, the UK government did not argue in this case that the children were not self-sufficient because they did not meet the requirement to hold Comprehensive Sickness Insurance.

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 decisive factor for the court was that to restrict the source of self sufficiency was to impose a gloss on the words of Directive 2004/38/EC and disproportionately interfere with the right of residence of EU citizens.

That is not necessarily the whole story. 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. This raises an interesting question of just how unlawful the relevant work might be for it still to qualify. Working in the UK without permission is now a criminal offence, and the court makes a reference to employment in 2018 after the criminal offence was brought into effect. But criminal activity that was not “work” as such but which did generate money, like burglary or drug dealing, would no doubt not qualify.

The outcome will not come as a surprise to those following the developing case law of the Court of Justice on this issue. The court had hinted at this interpretation of the directive in the earlier cases of Kuldip Singh in 2015 and NA in 2016. The result confirms that earlier UK domestic cases on the issue were wrongly decided: Seye (Chen children; employment) France [2013] UKUT 178 (IAC) and the line of cases cited in that determination, including the Court of Appeal cases W (China) and X (China) [2006] EWCA Civ 1494 and Liu and Ors v SSHD [2007] EWCA Civ 1275. The judges in those cases ought to, but probably won’t, reflect on the reasons why they got EU law wrong and why they did not make references to the Court of Justice.