DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(b) of the Social Security Act 1998:
I SET ASIDE the decision of the Leicester appeal tribunal, held on 3 December 2007 under reference 038/07/02190, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. 

REASONS
2.	This is an appeal in a right to reside case brought by the Secretary of State with the leave of a district chairman. I have allowed the appeal, because the tribunal did not make sufficient findings of fact to support its decision. Depending on the facts it finds, the tribunal may have to adjourn to await (i) my decision in a case due for oral hearing on 15 September 2008 or (ii) the outcome of the Court of Appeal’s reference to the European Court of Justice. 
3.	I set out the history and background to the appeal in Section A, explain how the tribunal went wrong in Section B and give directions for the rehearing in Section C.
A.	History and background
4.	The claimant is Somali by origin, but now has Swedish nationality. She came to the United Kingdom in 2001 with her husband and children. She received income support from 2001 to 2004. Her husband was then employed from 3 January 2004 to 15 February 2007. His employment then ceased and he was awarded a jobseeker's allowance. He left the United Kingdom on 9 March 2007 in order to care for his parents. The claimant claimed income support on that day.
5.	The Secretary of State refused the claim on the ground that the claimant was a person from abroad whose applicable amount was nil. She was, therefore, not entitled to income support. 
6.	The claimant exercised her right of appeal with the help of her representative. He argued that the claimant was not a person from abroad because she had a right to reside under the decision of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091 or under Article 12(3) of Directive 2004/38/EC. The tribunal accepted both arguments and adopted the representative’s submission as its statement of reasons.
7.	Both parties have now made their observations on the appeal to the Commissioner and the case is ready for decision. 
B.	Why I have set aside the tribunal’s decision
8.	The tribunal did not make sufficient findings of fact to show that the claimant and her children had a right to reside under Article 12(3) of Directive 2004/38. That provides:
‘Article 12
Retention of the right or residence by family members in the event of death or departure of the Union Citizen
…
3.	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.’
This is given effect in United Kingdom law by regulations 10(3)(a)(ii) and (b) and (4) and 14(3) of the Immigration (European Economic Area) Regulations 2006. 
9.	Article 12(3) does not confer a right to reside where none existed before. It provides for a right to reside to continue that would otherwise be lost. The issue that arises is whether the claimant’s children had a right to reside at the time when their father departed from the United Kingdom. Regulation 10(3)(a)(ii) is worded slightly differently – it refers to a person ‘ceasing to reside in the United Kingdom’ rather than to departure. However, it must be interpreted to give effect to the Directive and cannot be narrower than Article 12(3). I treat them as meaning the same thing.
10.	There is no doubt that the claimant’s husband was a worker from 2004 to February 2007. However, did he retain that status when his employment ceased? That depends on whether the claimant satisfied Article 7(3) of regulation 6(2). However, the tribunal did not make sufficient findings of fact to show whether or not he did so. As the Secretary of State’s submits, it is possible that the claimant’s husband gave up his job in anticipation of leaving the country. It is, of course, true that he was awarded a jobseeker's allowance, but that is not decisive on the claim for income support. 
11.	The tribunal went wrong in respect of Article 12(3). The present state of the law on the scope of Baumbast makes it impossible to say whether or not the tribunal went wrong in applying that case. A resolution of the relevant issues on Baumbast may be months, or even years, away. I therefore consider it appropriate to set the tribunal’s decision aside and remit all the issues for rehearing. 
C.	Directions for the rehearing 
12.	The children may have a right to reside on two bases. 
If their father had worker status
13.	The claimant’s children may have had a right to reside at the time when their father left the United Kingdom by virtue of his status as a worker. The claimant’s representative has argued that:
‘it cannot be envisaged that a person must remain a qualified person right up to the very moment of departure form the UK. If this were the case, a Union citizen who proposed to depart would be unable to give his employer proper notice, or, if a work seeker, would be unable to properly complete the formalities of ending a claim for JSA. We would submit that the process of “ceasing to reside in the UK” consists of more than simply leaving the country, or stepping onto a ferry, and must include at least a short period of putting one’s affairs in order. I would point out that it is “ceasing to reside” not “ceasing to be present” that must be considered and it would be reasonable and proportional to allow for a short period between being a worker or other qualified person and departing, to allow for leaving a job, ending benefit claims, disposing of accommodation etc.’ 
The Secretary of State’s representative has agreed, saying that a gap of a few days can be disregarded, but not a gap of weeks.
14.	I agree with the claimant’s representative that the words of Article 12(3) and regulation 10(3)(a)(ii) cannot be read literally. If they were, it would be difficult in practice for Union citizens to satisfy the condition unless they had no commitments and a permanent right to reside. I do not lay down any particular period than can or cannot be allowed for. That must depend on the circumstances of the particular case. For example, a person who is disabled may require longer to make the necessary arrangements than someone in perfect health. And the notice periods for work and the available flights could affect the length of the gap. However, the longer the gap the more closely the tribunal must inquire into the circumstances. I so direct the tribunal at the rehearing. 
15.	The father cannot have retained worker status under Article 7(3)(a) of regulation 66(2)(a) on the basis that he is temporarily unable to work because of the illness of his parents. The illness, for those provisions, must be the worker’s own illness: CIS/0599/2007.
If they come within Baumbast
16.	If the children did not have a right to reside on the basis of their father’s status as a worker, they may have a right to reside on the basis of Baumbast. However, there are doubts about the circumstances in which that case applies and on its relevance following the introduction of Directive 2004/38.
17.	As to the doubts about the circumstances in which Baumbast applies, two of these are the subject of oral hearing before me later this year. One is relevant to this appeal. Does a primary carer have a right to reside if neither parent was a worker when the child entered education but a parent became a worker while the child was in education? This will be considered in CIS/2417/2007.
18.	As to the continuing relevant of Baumbast, some of the issues are the subject of a reference to the European Court of Justice by the Court of Appeal in London Borough of Harrow v Ibrahim [2008] EWCA Civ 386. The questions referred are:
‘In circumstances where (i) a non-EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:
(1)	do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;
OR
(2)(i)	do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and
(ii)	if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;
(3)	if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?’
D.	Disposal
19.	I allow the appeal and direct a rehearing. 

Signed on original
on 08 August 2008	Edward Jacobs
Commissioner