From Free Movement:

The case of an Albanian couple living in Northern Ireland has been referred to Luxembourg over a conflict between English, Irish and European Union law. The decision of the Court of Justice of the European Union in their case could help thousands of other families to establish a right of residence in the UK.

The parents in Ermira Bajratari v Secretary of State for the Home Department are “Chen parents” – non-EU citizens with EU citizen children who can claim derivative rights of residence so long as they are self-sufficient. Two of the Bajratari children are Irish, but although the husband has been working, he has been doing so unlawfully since the expiry of a previous residence card. The Home Office refused to issue a new one, arguing that income from this illegal labour cannot be used to establish self-sufficiency, as per W (China) and X (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494.

The appellants argued, among other things, that this English Court of Appeal decision conflicts both with the original CJEU decision in C-200/02 Zhu and Chen and with a decision of the High Court of Ireland in OA v Minister for Justice, Equality and Defence [2014] IEHC 384. The AIRE Centre intervened as a third party.

Earlier today the Court of Appeal of Northern Ireland accepted that the law was not clear and referred the following questions to the CJEU:

i) 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 the Citizens Directive?

ii) If yes, can Article 7(1) be satisfied where the employment is deemed precarious solely by reason of its unlawful character?

The family were represented by Ronan Lavery QC and Helena Wilson, instructed by Ruairi Gillen of Gillen & Co Solicitors. Monye Anyadike-Danes QC acted for the AIRE Centre along with Ronan Toal and Gráinne Mellon of Garden Court Chambers, instructed by Ciaran Moynagh of McLernon Moynagh Solicitors.