CIS/1121/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Birmingham appeal tribunal dated 10 November 2006.

REASONS

2.	The claimant is a Dutch citizen who came to the United Kingdom on 18 November 2004 with his wife and six children, intending to settle permanently.  He obtained employment from 8 February 2005 but left that employment on 28 August 2005.  It appears that he then claimed and was awarded jobseeker’s allowance but, on 7 December 2005, he claimed income support on the basis that he was caring for his wife who had been awarded the middle rate of disability living allowance.  He was already in receipt of carer’s allowance, which had been awarded on 3 November 2005 with effect from 5 September 2005.  Income-based jobseeker’s allowance in fact remained in payment until 17 January 2006, after the claimant had been told that his claim for income support could not be processed until his award of jobseeker’s allowance had been terminated.  He was presumably given that information because section 124(1)(f) of the Social Security Contributions and Benefits Act 1992 makes it a condition of entitlement to income support that the claimant is not entitled to jobseeker’s allowance.  Thus, the claimant’s claim for income support in this case could be effective only from 18 January 2006.  On 19 May 2006, his claim for income support was disallowed on the ground that he had no right of residence in the United Kingdom and therefore could not be treated as habitually residence in the United Kingdom with the result that he was a person from abroad with an applicable amount of nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967 as then in force).

3.	The claimant appealed.  His first argument was that he retained a right of residence because three of his children were in school and he relied upon Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091 in which the first two of the rulings of the European Court of Justice were –

“1.	Children of a citizen of the European Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard.

2.	Where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.”

Secondly, he argued that he had not given up his work voluntarily and retained a right of residence as a worker.

4.	The tribunal rejected both of those arguments, in a carefully reasoned decision.  It held itself bound by Ali v. Secretary of State for the Home Department [2006] EWCA Civ 484 to reject the claimant’s argument that he had a right of residence because his children were in education and it held itself bound by CIS/3182/2005 to reject the claimant’s submission that he retained his status as a worker after he had given up work, even though the tribunal accepted that he had been obliged to give up work to look after his wife.  The claimant now appeals with my leave.

5.	In my judgment, the claimant’s representative from the Birmingham Tribunal Unit is right to submit that Ali is distinguishable from the present case and from Baumbast and R.  In both Baumbast and R and the present case the children had been installed in the United Kingdom and had entered education while the claimant was exercising a right to freedom of movement guaranteed by Article 39 of the EC Treaty.  In Ali, the appellant was not a citizen of the European Union and the mother of his children, who was such a citizen, had never worked, or looked for work, in the United Kingdom.  The Court of Appeal pointed out that there was nothing in Baumbast and R to suggest that “the child as a citizen of the Union had the right of residence simply by virtue of Article 18 and his pursuit of primary education”.

6.	However, the Secretary of State’s representative is equally right to submit that the present case is distinguishable from Baumbast and R.  Mr Baumbast was a German national who was working outside the European Union for a German company and thus for much of the time was living apart from his wife, step-child and child (only the last of whom was a citizen of the Union, having German nationality), who were living in the United Kingdom, where the father had previously worked, and who had been living there pursuant to residence permits for more than five years.  It is also relevant that the family were self-sufficient, save that they did not have medical insurance to cover emergency treatment in the United Kingdom and that there is no suggestion that either Mrs Baumbast or the children had ever lived in Germany.  R was not a national of the European Union but she had been married to a French citizen working in the United Kingdom and it was a term of the divorce settlement that their children, who lived with her, remain in the United Kingdom where they were at school.  Like the Baumbasts, she had been resident in the United Kingdom for five years and had had a residence permit that she was seeking to have renewed and she was working and was self-sufficient.  Her ex-husband was still working in the United Kingdom.  It does not appear that either R or the children had ever lived in France.  There are therefore many grounds upon which the circumstances of the Baumbasts and R, who were found by the Court to have rights of residence, may be distinguished from the circumstances of the present claimant and his family: for instance, the fact that a member of the family was working and that the families were more-or-less self-sufficient, the length of residence, the fact that the principal carer of the children was a citizen of a state outside the Union who had no connection, save through marriage, with any other state in the Union and the fact that the children and their principal carer lived apart, for at least most of the time, from a parent who was a citizen of the Union who had exercised a right to work in the host Member State.

7.	I accept that three of the claimant’s children fell within the literal scope of the first ruling of the Court in Baumbast and R and, that being so, I am prepared to accept for the purposes of this appeal that the claimant himself fell within the literal scope of the second ruling (although the evidence as to the necessity for him to care for his wife to the extent suggested is limited and it might have been necessary to refer the case to another tribunal were the point important).  However, it does not follow that the claimant has a right of residence. It cannot be assumed that the Court would have expressed itself in the same way had it been obliged to consider the rather different circumstances of the present case and I do not consider that the ruling has to be applied literally to the different facts of the present case.  Neither Community legislation nor community case law is to be read in the same way as United Kingdom legislation.

8.	Moreover, Baumbast and R was decided at a time when the Advocate General was able to say that Community legislation had not kept pace with social and economic developments.  Since the decision was made, the Council has adopted Directive 2004/38/EC, which came into force on 30 April 2006, between the date of claim and the Secretary of State’s decision in the present case.  That directive addresses the issues raised by the facts of Baumbast and R but it does not assist people in the position of the present claimant and his family.  It is clear that that is deliberate.  The directive provides that a person may acquire a right of permanent residence which is not conditional on any member of the family continuing to exercise a Community right to freedom of movement or being self-sufficient but only after a certain length of time, which varies according to the circumstances of the case.  It also provides for dependants to retain rights of residence in the event of the departure from the host Member State or the death of a Union citizen or in the event of family breakdown.  The claimant in the present case had not lived or worked in the United Kingdom for long enough to qualify for a right of permanent residence and the other provisions do not apply to his situation.

9.	In CIS/2358/2006 and CIS/408/2006, I have held that the scope of Article 18 of the Treaty must now be viewed in the light of that directive and, save where it can be demonstrated that there is a lacuna in the directive, a person who does not have a right of residence by virtue of the directive will not have a right of residence by virtue of Article 18.  I do not consider that the facts of the present case reveal any lacuna in the directive.  On the contrary, it would drive a coach and horses through the carefully-drawn limitations to the scope of the directive if any child who entered education while his or her parent was exercising a right to freedom of movement were to acquire a right of residence until he or she completed education.  Recognition of such a right of residence is not necessary in the circumstances of the present case to ensure the effectiveness of the guarantee of the rights to freedom of movement.  Nor does having due regard to the family life and dignity of the claimant as a citizen of the Union suggest that recognition of a right of residence is necessary.  The claimant’s wife’s disability had not suddenly arisen and it was not temporary.  If the consequence of the claimant being denied social assistance in the United Kingdom was that he and his family would be obliged to return to Holland, that was not inherently unreasonable, given that the provision of social assistance to a claimant is primarily the responsibility of the Member State of which the claimant is a national and that it would be no harder on the children for them to be have to move from one education system to another in 2006 than it was for them to do so in 2004. 

10.	I am satisfied that the claimant’s children did not have rights of residence due to their having entered education and that the claimant therefore did not have a right of residence as their carer.  The claimant has not challenged the tribunal’s finding that he had lost his status as a worker once he ceased looking for work and abandoned his claim for jobseeker’s allowance in favour of income support.  That finding was plainly correct.  At that point, the claimant lost the right of residence he had had until then.  Accordingly, the tribunal reached the only conclusion open to it when it found that the claimant had no right of residence in the United Kingdom for the purpose of his claim for income support.

	(signed on the original)	MARK ROWLAND
		Commissioner
		21 November 2007