In a recent judgment, the European Court of Justice (First Chamber) discussed whether income derived from working illegally could qualify as proof to sustain one’s residence status in an EU Member State. The case of Ermira Bajratari vs. Secretary of State for the Home Department highlighted some of the most important rights that any EU citizen, particularly an EU minor citizen that is born in a Member State, has, which are the rights of free movement and residence in any Member State. These rights were discussed and prioritized in this case, in quite an unusual manner.

The facts of the case concerned the applicant’s husband (both Albanian nationals), who had been working illegally in Ireland as he was not in possession of a residence card and a work permit. The couple had three children, with the first two children having obtained a certificate of Irish nationality.

An issue arose when Mrs Bajratari (the applicant), applied for recognition of a derived right of residence under Directive 2004/38, which concerns the right of European Union Citizens and their family members to move and reside freely within the territory of the Member States (hereinafter referred to as the “Directive”). This application was done after the birth of her first child, and it was refused by a decision of the Secretary of State for the Home Department, with the rejection being based on two grounds:

1. Mrs. Bajratari did not have the status of a “family member” within the meaning of Article 2 of Directive 2004/38; and
2. Her child did not satisfy the requirement of self-sufficiency in accordance to Article 7(1)(b) of the same directive.

The requirement of self-sufficiency must be satisfied in regard to Union citizens and their family members in order to avoid becoming a burden on the social assistance system of the host Member State during the period of residence. This also includes a comprehensive sickness insurance cover in the host Member State, both being limitations and conditions of the right of residence.

After multiple attempts to try and appeal the decision, she lodged an application to the Court of Appeal in Ireland, with the court stipulating that the European Court (First Chamber) had previously held that the requirement imposed by Article 7(1)(b) regarding sufficient resources for right of residence for more than three months is satisfied, without any requirement as to the origin of such resources, as was stated in the Alokpa and Moudulou case. However, the European Court did not specifically rule on whether the income that is derived from unlawful employment under national law, should be taken into consideration, bringing us to the two main questions that were put for a preliminary ruling:

1. Can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources under Article 7(1)(b) of [Directive 2004/38/EC]?
2. If “yes”, can Article 7(1)(b) [of the Directive] be satisfied where the employment is deemed precarious solely by reason of its unlawful character?’

Regarding the situation of Union citizens who are born in a host Member State and have never made use of their right of free movement, in this case being Mrs Bairatari’s first two children, it was stipulated that the Court had previously held that such Union citizens can rely on Article 21(1) TFEU, “subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”. The limitations and conditions referred to are those stipulated under the aforementioned Article 7(1), and the Court stated that the origin of the sufficient resources is not a requirement under EU law, since they may be provided by a third-country national who is a parent of the Union citizen minors. Such income by the third-State national parent does not exclude the condition concerning the sufficiency of resources from being considered as satisfactory.

An interesting outcome put forward by the Court is that the notion of sufficient resources under Article 7(1)(b) of the Directive is not solely derived from employment occupied by a third-State national in accordance to a residence card and a work permit. Such resources can be obtained by other means, as long as the Union citizens have sufficient resources in order for them not to be considered as an unreasonable burden on the social assistance system of the host Member State. What is important is the fact that the conditions and the provisions must be appropriate and necessary to obtain the objective pursued, mainly to protect the public finances of the Member State. This is evident under Article 14(2) of the Directive, which allows Member States to check Union citizens and family members and act in the situation of an actual loss of financial resources, when Union citizens and their family members do not meet the conditions set out in Articles 7, 12 and 13. Because of this, an interpretation of the condition of sufficient resources under Article 7(1)(b) of the Directive can result in the introduction of a further requirement regarding the origin of the resources provided by the employed parent, which could create a disproportionate interference with the exercise of the Union minor citizen’s fundamental rights of free movement and of residence in accordance to Article 21 TFEU, in so far as that requirement is not necessary for the achievement of the objective pursued.

Seeing that Mrs. Bajratari’s children did not receive any social assistance from the United Kingdom over the course of the previous 10 years, the Court concluded that if a national measure were to be introduced that allowed the authorities of the Member States to refuse a minor Union citizen their right of residence on the grounds that the resources being derived from their parent’s employment is of an illegal nature as they are not in possession of a residence card and a work permit, it would go against what is necessary in order to protect the public finances of the State. Such a conclusion was given especially due to the fact that the Bajratari family had managed to support themselves over the course of 10 years without relying on the UK’s social assistance system.

Thus, Mr. Bajratari’s employment was deemed to be satisfactory under the term of sufficient resources in accordance to Article 7(1)(b), despite its illicit nature.

This article was written by Dr Cherise Abela Grech and Legal Trainee Mr Steve Vella.

For more information on the Application for a Maltese Residence Permit, please contact Dr Ivan Gatt on igatt@gtgadvocates.com, Dr Cherise Abela Grech on cabelagrech@gtgadvocates.com and Dr Maria Attard on mattard@gtgadvocates.com

This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.