Can EU Children be maintained from the earnings of illegally working parents?

This was the issue the Court of Justice wrestled with in the case of Bajratari (C-93/18)

The case involved two Albanian parents who were the carers of their two Irish children (residing in Northern Ireland).

Children in such a situation are supposed to be self-sufficient – but where are these resources supposed to come from?

The mother’s application for a residence permit was refused, amongst other things, on the basis that her children were not self-sufficient as the resources on which they relied were derived from the illegal employment of their father.

The Court decided that what had to be shown was that the children had sufficient resources not to be a burden on the Social Assistance System and the fact that these resources were derived from the unlawful employment of the father was not necessarily prevented by law.

In this case, the father had worked for an extensive period and not sought public funds.

The Court also rejected there was a public policy exception which could limit this right – that the use of resources derived from illegal working would cause some sort of social harm.  The behaviour was not serious enough to fall within this exception.

Perhaps late in the day but the case is a welcome blow against attempts to restrict EU citizen children’s rights to live with their third country national parents within the EU.

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