CIS/623/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Fox Court appeal tribunal dated 8 November 2006.

REASONS

2.	The claimant is a Dutch national who came to the United Kingdom on 6 March 2005 with her two children aged 2 and 9.  She obtained employment from 14 March 2005 for three months.  She was of Somali origin and it appears had little command of English but her work was with a Somali advice agency.  A letter from the agency suggested that she worked for six hours a day for four days a week but her payslips show pay for only ten hours a week.  Her son started school in April 2005.  It was asserted to the tribunal that she left the employment at the end of her probationary period because of difficulty with accompanying her son to and from school but it is not explained what caring arrangements there were for her younger child.  Her employment ended on or about 15 June 2005.  She claimed jobseeker’s allowance from 11 October 2005 to 14 February 2006 and it appears that her award was terminated because she had started a course of study.  On 2 March 2006, the claimant claimed income support.  On 4 May 2006, the Secretary of State disallowed the claim on the ground that the claimant 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 she 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.  It was argued before the tribunal that the claimant had a right of residence because her son had been admitted to education pursuant to Article 12 of Regulation (EEC) No. 1612/68 and so both he and she had rights of residence 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 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.”

The tribunal said nothing about that argument but decided that the claimant had no right of residence because, on her own evidence, she was available for work only from 9am to noon and so “cannot be said to be available for any meaningful work”.  She now appeals against that decision with the leave of a salaried tribunal chairman.

4.	The tribunal’s finding that the claimant was not available for any meaningful work has not been challenged on this appeal.  It is clear that the language used by the tribunal is derived from the submissions made orally by the Secretary of State’s presenting officer at the hearing, in which reference was made to my decision in CH/3314/2005 and CIS/3315/2005.  The issue was whether the claimant was a workseeker seeking “genuine and effective” employment but it is clear that the tribunal’s conclusion was that the work she was seeking would not have been “effective”.  That was a view the tribunal was entitled to take on the evidence before it without necessarily going through the detailed analysis I undertook in CH/3314/2005 and CIS/3315/2006, where I accepted that the claimant was seeking effective employment but I found that she did not have reasonable prospects of securing such employment.

5.	The tribunal plainly ought to have explained why it did not accept the submissions based on Baumbast and R.  However, I can remedy that defect by reference to what I have written today in CIS/3444/2006, a case indistinguishable from the present case.

“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.”

6.	That reasoning leads to the conclusion that the claimant in the present case did not have a right of residence merely because her son had been admitted to school in the United Kingdom while she was working here.  Accordingly, her appeal must be dismissed.

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