By Maria Haag
On 2 October 2019, the CJEU delivered an important decision, which clarifies the ‘sufficient resources’ condition of Article 7(1)(b) Directive 2004/38 and simultaneously reinforces the right to free movement of Union citizens.
The case concerned the right of a third-country national mother of two minor Union citizens to reside in Northern Ireland in her capacity as their primary carer. The UK authorities had found that the mother could not claim a derived right of residence as the children did not fulfil the requirements set out in Article 7(1)(b) of Directive 2004/38. This provision sets out two conditions for the Union citizen’s right of residence in a host Member State for a period longer than three months: having (i) sufficient resources for themselves and their family members not to become a burden on the host state’s social assistance system, and (ii) comprehensive sickness insurance cover.
Specifically, in this case, the UK authorities argued that the minors could not prove compliance with the requirement for sufficient resources. While their father did place resources at their disposal, the UK authorities argued that such resources could not be taken into account for the purposes of Article 7(1)(b), as they had derived from employment carried out unlawfully after the expiry of his residence card and work permit.
Durim Bajratari, an Albanian national, entered Northern Ireland in 2009. As the partner of a UK national, he was granted a residence card. Following the ending of the relationship, he left the UK in 2011 and married Emira Bajratari, also an Albanian national. The married couple returned to Northern Ireland in 2012. At no point was the husband’s residence card revoked. Since 2009, Mr Bajratari had been working as a kitchen chef. In 2014, when his residence card expired, he continued working, without a residence card or work permit. The couple’s three children were all born in Northern Ireland, two of which acquired Irish nationality. After the birth of her first child, Ms Bajratari applied for recognition of her derived right of residence as the primary carer of a Union citizen minor. This application was rejected and ultimately led to the preliminary reference made by the Court of Appeal in Northern Ireland:
- Can income from employment that is unlawful under national law establish the availability of sufficient resources under Article 7(1)(b) Directive 2004/38?
- If ‘yes’, can Article 7(1)(b) be satisfied where the employment is deemed precarious solely by reason of its unlawful character?
The First Chamber held in last week’s decision that a Union citizen minor fulfils the requirement of having sufficient resources, even if those resources come from an income gained through the unlawful employment of their father, a third-country national without a residence card or work permit (paras. 48 and 53). The judges relied on two key arguments to support their conclusion: the wording of Article 7(1)(b) of Directive 2004/38, and the principle of proportionality.
First, the CJEU argued that nothing in the wording of Article 7(1)(b) Directive 2004/38 indicates that only resources derived from lawful employment can be considered. Instead, the provision merely stipulates that Union citizens have to have “sufficient resources at their disposal to prevent them from becoming an unreasonable burden on the social assistance system of the host Member State …, without establishing any other conditions, in particular as regards the origin of those resources” (emphasis added, paras. 33-34).
Second, the Court asserted that since “the right to freedom of movement is – as a fundamental principle of EU law – the general rule, the conditions laid down in Article 7(1)(b) Directive 2004/38 must be construed in compliance with the limits imposed by EU law and the principle of proportionality” (para. 35). This is almost a direct quote from its previous decision in Brey (para. 70) and a clear reference to the Baumbast and R judgment (para. 91). It follows that national measures must be appropriate and necessary to attain the objective pursued by the provision, i.e. the protection of public finances of the Member States. Here, the Court conceded that the sufficient resources provided by an unlawfully employed parent may indeed be more precarious due to the illegal nature of his/her residence. The risk of losing such resources and having to rely on social assistance might thus be greater. Arguably therefore, excluding such resources achieves the aim of protecting the host Member State’s public finances. The Court, however, held that there are several provisions in Directive 2004/38 which allow Member States to act in the event of an actual loss of financial resources to protect its social welfare system. The introduction of a further requirement relating to the origin of sufficient resources would therefore “constitute a disproportionate interference with the exercise of the Union citizen minor’s fundamental rights … under Article 21 TFEU” (para. 42).
The Court also highlighted that tax and social contributions were paid on the income of Mr Bajratari even after he was unlawfully employed. Furthermore, the children had never received any social assistance in the UK. The Court considered that the refusal to recognise these resources, even though they had allowed the Union citizens and their family members to reside in the host state “for the past 10 years without needing to rely on the social assistance system of that Member State, goes manifestly beyond what is necessary in order to protect the public finances of that Member State” (para. 46).
Finally, the UK government had advanced the argument that a restriction of the free movement rights of the Bajratari children was justified on the grounds of public policy. The Court clarified that the conditions to invoke such a justification had not been met in case, as the concept of ‘public policy’ presupposes “the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (paras. 51-52).
This case builds on and reaffirms a line of case-law that began with the judgment in Zhu and Chen. In that judgment, the Court held that “it is sufficient for the nationals of Member States to ‘have’ the necessary resources” and that there is “no requirement whatsoever as to their origin” (para. 30). Thus, the Court established that Union citizen children can be financially supported by their third-country national parents, and do not have to prove personal financial resources. This ruling is taken a step further in Bajratari: Member States may not evaluate how those resources were acquired, i.e. an income acquired from unlawful employment must count towards fulfilling the sufficient resources requirement.
I should note the useful distinction made by Advocate General Szpunar in his Opinion between sufficient resources acquired by unlawful employment and “the illegality of resources derived from criminal activity” (para. 66). The only unlawful aspect of Mr Bajratari’s work is the fact that he did not have a valid work permit. This, of course, is not comparable to a situation in which income is gained through an illegal or criminal activity. The Advocate General gave the example of assets derived from drug trafficking here. It is clear in the Directive 2004/38 and previous CJEU case law, that the Member States may restrict the free movement right of Union citizens involved in criminal activities on the grounds of public policy or public security. A parent who engages in an illegal activity and supports their Union citizen child with money derived from such an activity, could be denied a right of residence and/or expelled from the host Member State, even if that means that their child would be forced leave the host state with them. In case of Mr Bajratari, the only infringement committed was continuing to work without a work permit. Without providing sufficient evidence that this goes against public policy, the host Member State cannot restrict the residence right of his children. In its judgment, the Court therefore recognises the importance of the distinction between employment without a lawful work permit, and money gained from illegal/criminal activities.
This case highlights the interdependence of the right to reside and the right to work. The third-country national parent must have a right of residence to receive a work permit. But s/he, in most circumstances, also needs to have a right to work so that his/her Union citizen child is able to fulfil the conditions of the right to reside under Directive 2004/38. The refusal to take into account resources obtained through employment carried out without a work permit would mean denying both the children and their parents any real chance of acquiring a right of residence in the host state.
Advocate General Szpunar wrote forcefully in his Opinion that: “It should be noted from the outset that an answer contrary to that which I have proposed would deprive the right of residence by Directive 2004/38 and Article 21 TFEU of any useful effect” (para. 80). The Court’s judgment follows his Opinion. And the Advocate General was right. A decision to the contrary would have seriously weakened the security of the right of residence of Union citizens in host Member States. Denying the Union citizen minor the right to reside simply because of the employment status of his/her parent would have put the status of Union citizenship and the protection of its core rights into question. Instead, the Court has emphasised and facilitated the rights of the Union citizen.
This decision most importantly takes into consideration the realities and complexities of migration. Moreover, it ensures – at least in these circumstances – that the Union citizen’s rights stay protected even when immigration complications get in the way.
 See AG Szpunar’s Opinion in Bajratari, para 73: “it is clear from Chapter VI of Directive 2004/38 that Member States have the possibility of relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security.” See also the Tsakouridis decision, for example.