In MM (section 117B(6) – EU citizen child) Iran  UKUT 00224 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) held that the definition of the term “qualifying child” in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 did not include EU citizen children who had lived in the United Kingdom for less than seven years, and that this interpretation was not a breach of EU law against nationality discrimination.
The Appellant, an Iranian citizen facing Deportation, sought to resist removal based on his relationship with his EEA National daughter. Section 117B(6) of the 2002 Act provided that there was no public interest in an immigration applicant’s removal where they had a genuine and subsisting parental relationship with a “qualifying child” and it would be unreasonable to expect the child to leave the UK. A qualifying child was defined in section 117D(1) as a British child or one who had lived in the UK for a continuous period of seven years.
The First-tier Tribunal determined that the Appellant’s daughter had not lived in the UK for the required seven-year period, and therefore did not satisfy the definition of a “qualifying child”. The appeal was dismissed.
On appeal to the Upper Tribunal, the Appellant argued that his child’s exclusion from the definition of the term “qualifying child” was nationality-based discrimination in breach of Article 18 TFEU, which provided that “within the scope of application of the Treaties… any discrimination on grounds of nationality shall be prohibited”.
The Upper Tribunal held that the exclusion of EEA national children from the scope of section 117D(1) was not a breach of EU law. The mere fact that the Appellant’s daughter was an EEA national who was residing in the UK in accordance with EU law was not sufficient to bring the parental relationship within the scope of EU law. The Appellant was not a family member within the meaning of Directive 2004/38/EC, and could gain a derivative right to reside only if his removal would necessitate the child having to leave the UK, but in the event of the latter, the Appellant would have a right to reside in the UK, therefore there would be no discrimination. The appeal was accordingly dismissed. This case illustrates some of the complexities that arise when EU law interacts with domestic immigration law.
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