[2007] UKSSCSC CIS_3444_2006 (21 November 2007)

CIS/3444/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Leeds appeal tribunal dated 12 July 2006 and substitute my decision that the claimant is not entitled to income support from 7 November 2005 because she had no right of residence in the United Kingdom.

REASONS

2.	The Claimant is a Czech national.  She came to the United Kingdom with her children in May 2004, after her marriage broke up, and she worked from 12 September 2004 to 26 September 2005 in employment in respect of which she was registered under the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219).  She then gave up work to care for her youngest child who was aged 3.  Her 14 year old and 17 year old daughters were also living with her, the former having been at school in Bradford since October 2004.  On 7 November 2005, she claimed income support.  On 31 January 2006, her claim was disallowed on the ground that she had no right of residence and therefore she could not be treated as habitually resident in the United Kingdom with the result that she was a person from abroad with an applicable amount of nil by virtue of regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967 as then in force).

3.	The claimant appealed and her appeal was allowed on the ground that her 14 year old daughter had commenced a course of full-time education in exercise of rights under Article 12 of Regulation (EEC) No. 1612/68 during the time that the claimant was employed and had a right of residence as a migrant worker.  Although the claimant had no right of residence at the material time under domestic legislation or under EC directives then in force, the tribunal took the view that, in the light of Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091, the claimant’s daughter had a right of residence for the purpose of pursing her education and that the claimant herself had a right of residence as her daughter’s primary carer in order to facilitate her daughter’s exercise of her rights.  In Baumbast and R, the first two of the Court’s rulings 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.”

4.	The Secretary of State now appeals with the leave of the tribunal chairman on the ground that Baumbast and R should be distinguished.  In particular, it is pointed out that Mr Baumbast remained a worker, albeit not in the host Member State.  It must also be recalled that Mr Baumbast and his family were self-sufficient save in the matter of health insurance in the United Kingdom, that he had had his principal home in the United Kingdom for over five years, that his wife and step-daughter were not nationals of any Member State of the European Union and, as far as one can see, neither they not his daughter, who was a German national, had never lived in Germany or any other Member State and that, although Mr Baumbast was working for a German company, he was working outside Europe.  In those circumstances, it is not difficult to see why the Court decided that he and his family retained rights of residence in the United Kingdom.  It would not have been reasonable to suggest that the only Member State in which they had a right of residence was Germany.  Similar considerations arose in the case of R, who was a United States national who had been married to a French citizen but had been divorced.  She had remained living in the United Kingdom with their children, who were at school, and had been resident in the United Kingdom for more than five years at the material time.  Her ex-husband had also remained working in the United Kingdom and it was a term of the divorce settlement that the children should continue to reside in the United Kingdom for five years or until their parents agreed otherwise.  It does not appear that she or the children had ever lived in France.  Again, denial of a right of residence in the United Kingdom would have suggested that the only Member State of the Union in which she might have had a right of residence was France.

5.	Moreover, Baumbast and R was decided at a time when Community legislation governing rights of residence had failed to keep pace with developments.  In CIS/2358/2006 and CIS/408/2006, I have held that once Directive 2004/38/EC was adopted, regard had to be had to its provisions when considering whether Community law confers rights of residence, even in cases like the present that arose before the directive came into effect (although that may not be so in a case where the directive appears not to confer a right that was previously conferred by legislation).  As the Secretary of State points out, Articles 12 and 13 of that directive address the issues raised in Baumbast and R  and neither article would have assisted the claimant had it been in force at the material time.  Of particular relevance is Article 12(3) which provides –

“The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.”

Also relevant are articles 16, 17 and 18 which guarantee rights of permanent unconditional residence in certain circumstances, of which the most relevant is the completion of five years’ continuous legal residence, but those articles would not have assisted the claimant either.  The implication of the directive is that those citizens of the European Union who have not resided in a Member State for long enough to acquire a right of permanent residence and who are not within the scope of other provisions guaranteeing a right of residence do not have a right of residence in that Member State by virtue of Community law, save where it can be demonstrated that a denial of a right of residence would be incompatible with the Treaty.  It must be accepted that, where directives do not confer a right of residence, the Council of the European Communities envisages that a citizen of the Union who needs to rely on social assistance will return to the state of which he or she is a national.

6.	I accept that the first ruling of the Court in Baumbast and R was expressed in broad terms.  However, a ruling in such broad terms was not necessary to the Court’s decision in either of the cases before it and it is clear that, in adopting Directive 2004/38/EC, the Council has taken a slightly different approach, addressing the issues raised by the facts of Baumbast and R but not adopting legislation guaranteeing rights of residence to all those falling within the literal terms of the Court’s rulings.  In my judgment, the Council was entitled to take that different approach.  The Court had not been obliged to consider the position of children whose mother and principal carer was a citizen of the Union who had resided in the host Member State for less than five years and whose father had no connection with the host Member State, whereas the Council plainly has considered the relevant issues and, in my judgment, has taken a legitimate approach having regard to the competing policies in this area and the principle of proportionality.  The terms of the Court’s ruling must be regarded as having been qualified by the new Directive.

7.	There is no reason in principle why, in this case, the claimant’s 14 year-old daughter should have had a right of residence in the United Kingdom.  She did not have a right of residence by virtue of the length of time she had resided in the United Kingdom.  She had ceased to have a right of residence by virtue of her mother being a worker.  Her father had never had a right of residence in the United Kingdom.  Everything turns on whether she had a right of residence for the purpose of continuing her school studies.  Article 12 of Regulation (EEC) No. 1612/68 clearly aims to give effect to the freedom of movement of workers guaranteed by Article 39 of the EC Treaty by enabling workers’ children, installed in a host Member State under Article 10 of the regulation, to be admitted to education.  Nothing in the legislation suggests that that gives rise to a right to remain in education after the child’s parents have ceased to exercise a right to freedom of movement guaranteed by the EC Treaty.  Baumbast and R makes it clear that such a right to remain in education must sometimes be implied but, for the reasons I have given, I am not persuaded that such a right is necessarily to be implied where Directive 2004/38/EC makes no relevant provision.  It may be arguable that a child admitted to education should be enabled to remain in it if he or she has reached a crucial point in a particular course, but there is no evidence that that was the situation here when the claimant gave up work near the beginning of what would probably have been her daughter’s Year 10 at school.  It is not uncommon for children to change schools because their parents have moved to a new area or a new country.  Indeed, the present claimant’s teenage children both did so when she first came to the United Kingdom.  Such moves are not necessarily inconsistent with a child’s right to a proper education and so the principle of proportionality does not necessarily prevent a Member State from pursuing its legitimate policy of restricting access to social assistance to its citizens and those exercising rights to free movement merely because the consequence is that a child must change schools and move into the education system of another country.

8.	Moreover, even if there were compelling reasons why a particular child’s education should not be interrupted at a particular moment, it would not follow that social assistance should be made available to a parent caring for him or her who is an able-bodied citizen of the Union who has a right to work in the host Member State but who has voluntarily withdrawn from the labour market.  The Court has frequently drawn attention to the fact that the preambles of directives conferring rights of residence refer to the principle that a person should not be an unreasonable burden on the social assistance scheme of a host Member State.  Where a child does not have a right of permanent residence, his or her right of residence is granted in order to give effect to his or her parents’ rights under the Treaty.  It is therefore not generally unreasonable for a child’s right of residence to be dependent on his or her parent being economically active if he or she is not otherwise self-sufficient.  I am satisfied that the claimant’s daughter had no right of residence in the United Kingdom.

9.	It is clear that the claimant herself had no right of residence in the United Kingdom under domestic law and it has not been suggested that she has any right of residence under Community law unless her daughter did.  Until the claimant had been in the United Kingdom for long enough to acquire a right of permanent residence, it was, in practical terms, necessary for her to work or look for work if she wished to retain a right of residence.  Accordingly, I allow the Secretary of State’s appeal.

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