On 2 October 2019, the CJEU delivered an important decision in Bajratari v SSHD(Case 93/18), clarifying the ‘sufficient resources’ condition of Article 7(1)(b) Directive 2004/38 whilst simultaneously reinforcing the right to free movement of Union citizens. The AIRE Centre intervened in both the Northern Irish Court of Appeal and the CJEU proceedings.

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 places two conditions on Union citizens who claim a right of residence in a host Member State for a period longer than three months namely 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.

The UK authorities argued that the requirement for sufficient resources was not met on the facts of this case, as the father’s income derived from employment carried out unlawfully after the expiry of his residence card and work permit (though he was still paying tax and social contributions on the income he received during this period).

The CJEU however, following the Advocate General’s opinion, rejected the UK authorities arguments. It held that a Union child fulfils the requirement of having sufficient resources, even if those resources come from income gained through ‘unlawful’ employment (paras. 48 and 53). This was in line with the wording of Article 7(1)(b) of Directive 2004/38, and the principle of proportionality. In its judgment, the Court recognised the importance of the distinction between employment without a lawful work permit, and money gained from say illegal/criminal activities.

Amongst the lawyers instructed by the Claimant was Helena Wilson BL (a former AIRE centre intern). Monye Anadike Danes QC, Aidan O’Neill QC, Ronan Toal and Grainne Mellon were instructed on behalf of the AIRE Centre by Ciaran Moynagh of Phoenix Law Belfast, all of whom acted pro-bono. The AIRE Centre is extremely grateful for their assistance and also the support of the Strategic Legal Fund which made our intervention possible.