UK Immigration & Nationality Lawyers

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The Court of Justice of the European Union once again addressed the right of residence in the European Union of the parents of EU national children. In Alokpa C-86/12 the question before the court was whether self-sufficiency of the family was a prerequisite to the right of residence in an EEA state which was not the country of nationality of the EEA national child.

The applicant in this case was a Togolese national who since 2006 had been unsuccessfully seeking international protection in Luxembourg. In 2008 she gave birth to twins who were French nationals through their father. Mrs Alokpa sought to establish a right of residence in Luxembourg on the basis that she was the mother and sole carer of two French children. As she had not had the right to work due to her precarious immigration status prior to the birth of the children, she was relying on public funds for support. She had a job offer in Luxembourg and needed confirmation of her right of residence before she could accept the offer.

The CJEU has ruled that in order to establish a right of residence derived from relationship to the EU national children, the third country national had to demonstrate that the children, as well as other family members, were self-sufficient – or had sufficient resources to maintain themselves without recourse to public assistance during the period of residence. A job offer could not be viewed as assurance of future self-sufficiency.  Thus, Luxembourg was within their right to refuse Mrs Alokpa the right of residence.

The Court also noted that it was open to Mrs Alokpa to move with the children to France, which was the country of their nationality even though they were born in Luxembourg. It was held that it was a question of fact whether refusal of the residence permit would in effect amount to expulsion of the family outside the European union and would thus deprive the children of enjoyment of citizenship of the European Union. That issue would need to be addressed on a case by case basis before decisions refusing residence rights to parents of EEA national children are made.

For discussion of the current legal position on derivative rights of residence see our blog post Residence rights of the parents of an EEA national child.

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