Chapter 21 Annex 3 - EEA national minor children

21.3.1 - Ruling in European Court of Justice (ECJ) case of Chen
In the Chen case the ECJ ruled that an EEA national child who held sickness insurance would have a right to reside in the UK with his or her non-EEA parent provided that the non-EEA parent had sufficient resources to ensure that the child did not become a burden on public funds.

This ruling did not say that the EEA child's parent would have a right to reside as a "family member" as defined in EC law because a parent cannot be financially dependent on a child. The parent is entitled to reside in a Member State with his or her child solely to facilitate the child to exercise their Treaty rights. The ruling did not give non-EEA parents the right to work.

21.3.2 - Implications of case for UK policy
Prior to the Chen ruling it was our policy that children under the age of 16 were not capable of exercising Treaty rights and that applications from non-EEA parents would be refused on that basis.

Following Chen, EEA children may qualify for a registration certificate on the basis of being self-sufficient. The child must be self-sufficient without relying on funds earned by a non-EEA relative in the UK, unless this comes from legal employment (for instance if they are in the UK on a work permit). Paragraph 257C of the Immigration Rules allows for non-EEA parents and other close relatives of self-sufficient EEA children to be granted leave to enter or remain in the UK.

21.3.3 - Assessing sufficient resources
When assessing whether there are sufficient resources to ensure that the child does not become a burden on public funds you should take account of any relatives who are residing in the UK with the child. For instance, if the child is living in the UK with two parents you should be satisfied that there are sufficient resources available for the child and both parents.

The funds should be sufficient for the intended period of residence. You should be satisfied that the funds are sufficient to ensure that the child and any relatives will not become a burden on public funds. There may be cases where the minor child and primary carer are supported by a relative outside the UK (as in the case of Chen).

You should remember that any non-EEA relatives who are granted leave to enter or remain on the basis of their relationship to an EEA child will not have access to the UK labour market (they are granted leave to remain with no access to employment or public funds.) However, if they have leave granted in their own right (e.g. a work permit) they would then obviously be able to work. However, it is unlikely that they would then apply under EC law anyway. If there is sufficient evidence to suggest that the child's non-EEA relatives would need to work in the UK in order to support the child, the application for leave should be refused.

If you require assistance in a case involving the primary carers and / or relatives of EEA national minor children you should contact the European Casework Group (EURO 1) – see 21.4.11 for contact details.

21.3.4 - Can an EEA minor child exercise a Treaty right on any other basis other than self-sufficiency?
A child who is in, or intends coming to, the UK for a limited duration (for example to receive private medical care) may be eligible for a registration certificate on the basis of self-sufficiency. The validity of their residence permit would be limited to the duration of self-sufficiency. Please refer to section below for more information on the rights of their primary carer(s) or relatives.

If an EEA child is attending (or planning to attend) private education or private day care in the UK this should be dealt with on the basis of self-sufficiency. This is because the child is seeking a right of residence in the UK on a more long-term basis rather than for a limited duration.

21.3.5 - Applications for leave to enter the UK from non-EEA relatives of EEA minor children
The requirements to be met by a person seeking leave to enter as the primary carer or relative of a self sufficient child are set out in Paragraph 257C of the Immigration Rules.

To qualify, the applicant must fulfil the following requirements. They must:

• be the primary carer, parent or sibling of an EEA national who is under the age of 18 and who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self sufficient person;
• be living with the EEA national or seeking entry to the United Kingdom in order to live with the EEA national;
• be able to and will be maintained and accommodated without taking employment or having recourse to public funds;
• hold a valid entry clearance if seeking leave to enter;
• in the case of a sibling of the EEA national:
• be under the age of 18 or holding current leave to enter or remain in this category ; and
• be unmarried, not having formed an independent family unit and not leading an independent life;

There may be instances when an EEA national child is in the UK or seeking to come to the UK as a self-sufficient person (see above). If a child has a right of residence on this basis and the child’s primary carer or other close relatives are applying for leave to enter, you should refer to the Home Office [comment – ECOs will have to refer these, as they cannot issue leave outside the Rules]. This should be done if they do not qualify under an existing provision of the Immigration Rules.

21.3.6 - Issue of leave to enter
If you are satisfied that the EEA national minor child is self-sufficient and that there will be sufficient resources to maintain the child and their family members whilst in the UK, you should issue entry clearance to the non-EEA primary carer/relatives for a period not exceeding five years or the remaining period of validity of any residence permit held by the EEA national under the 2006 EEA Regulations.

Fees – Normal long term non settlement fee should be charged.

21.3.7 - Refusal of a non-EEA relative for entry clearance
Below are the most common types of refusal. The list is not exhaustive:

"You have applied for / an application has been made on your behalf for entry clearance as the primary carer / relative of [EEA child's name] but you have failed to produce evidence that":

Para 257C (i)

"[EEA child's name] has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person"

Para 257C (iv)

"you will be able to maintain and accommodate yourself without access to work or public funds"

Para 257C (i)

" you are related as claimed to [EEA child's name]"

Para 257C (ii)

"you will be living with [EEA child's name]"</>

21.3.8 - Appeals
There will be no right of appeal under the EEA Regulations against the refusal of entry clearance. However a decision to refuse entry could attract a right of appeal under section 82 (2) of the NIA Act depending on the circumstances of the case.

See Chapter 27 of the DSPs for guidance on appeals under the 2002 Act.

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