Art 12 covers “general educational, apprenticeship and vocational training courses” and it is clear that the ECJ considers that compulsory schooling falls under it. As Art 12 predates directive 77/486 and in the absence of any specific limiting/amending of Art 12 in that directive, I don’t see how the existence of the directive can be taken to exclude compulsory schooling from the ambit of Art 12.

The Directive 77/486 point does not appear to have been argued in either Teixeira or Ibrahim.

So it seems to me that if Directive 77/486 covers compulsory education then Article 12 must relate to something else -in this case it must be referring to the child care course (vocational training) that Teixeira daughter was enrolled on when she asked Lambeth for housing accommodation. That produces symmetry between the two Directives.

We will have to wait and see what the Court of Appeal makes of it all. Is there any news on when it is listed for?

Para 74 of Teixeira
“it is enough that the child who is in education in the host Member State became installed there when one of his or her parents was exercising rights of residence there as a migrant worker. The child’s right of residence in that State in order to attend educational courses there, in accordance with Article 12 of Regulation No 1612/68, and consequently the right of residence of the parent who is the child’s primary carer, cannot therefore be subject to the condition that one of the child’s parents worked as a migrant worker in the host Member State on the date on which the child started in education.”

Para 75 of Teixeira:
” the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.”

That looks pretty categorical to me. Of course one of the parents must have been a worker when the child entered the host country.

I accept that the ECJ does not say that the parent must have been a worker when the child started but neither does it is not necessary. What the ECJ does say, in the case of Case C-7/94 Gaal (cited with approval in Teixeira) at [27], “On that point, it need only be observed that, as the Court has already held (see Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraph 30), Article 12 of the Regulation must be interpreted as granting rights only to a child who has lived with his parents or either one of them in a Member State at a time when at least one of his parents resided there as a worker.”

I agree it is not a generalised right, and that a child must have started school. I don’t think anything I’ve said suggests otherwise.

But it is not correct that the ‘ECJ was examining facts where the loss of right of residence happened after the children were following educational courses’. In Ibrahim, yes, but not in Teixeira.

Indeed, this was the point of one of the questions referred to the ECJ in Teixeira – at i) in my report above. And the answer is as I said – it is not necessary for the child to have entered education while the parent was a worker (ie while they retained the right to reside) as long as the child came to the host country while the parent was a worker.

This view is supported by paragraph 45 of Teixeira -which says, “Access to education thus depends on the child first being installed in the host Member State. Children who have installed themselves in the host Member State in their capacity of members of the family of a migrant worker…” The word ‘first’ suggests that the child must be in school before the Article 12 right kicks in.

The purpose of Article 12 is to ensure that the child, who is integrated in the education system of the Member State can finis their studies.

In Teixeira the daughter was at college when the mother asked Lambeth for housing assistance and it would seem that in Ibrahim the two eldest children started school whilst the husband was working. So the ECJ was examining facts where the loss of the right of residence happened after the children were following educational courses.

Surely the question is only whether Ms Zalewska was a worker at the relevant point, surely. If she was – and the child entered school prior to July 2005 – then the child has Art 12 rights. I think if the case was reheard now then Ibrahim and Teixeira would probably mean a different decision.

The appellant in that case is a national of the Republic of Poland. She travelled to Northern Ireland to find work on 1 July 2004. About a week later and until 7 January 2005 she worked for Monaghan Mushrooms. She applied for a registration certificate under reg 8 of the 2004 Worker Registration Regulations. On 7 January 2005 she stopped picking mushrooms and found some agency work -first with Smirnoff Vodka for about three weeks from 8 January 2005 and then from the end of January 2005 she worked for Linwoods. On 10 July 2005 she stopped working. By that date she had worked for an uninterrupted period of 12 months but she had not applied for a registration certificate in connection with her employment either with Smirnoff or with Linwoods.

This did not matter for the Smirnoff employment because it was for less than a month -but it did for Linwoods.

In the meantime her daughter joined her in Northern Ireland in January 2005 and then later her partner, the child’s father, arrived in April 2005. At the end of June 2005 she left her partner due to domestic violence.

On 22 July 2005 she applied for income support for herself and her daughter. Her claim was disallowed on the ground that, as she was an accession state worker requiring registration who was not entitled to be treated as a qualified person because she had not registered the Linwood employment -therefore she had no right to reside in the United Kingdom. To qualify for that right she required to have worked for an authorised employer for an uninterrupted period of 12 months, and the only registration certificate that she was able to produce related to her first employer for whom she had not worked since January 2005.

The question, as I see it, is whether the decisions in Teixeira and Ibrahim would have helped her. On these facts quite possibly. If the daughter started school before the end of January 2005 (before the Smirnoff employment ended) then she would be able to claim a right to reside directly from Article 12 of Regulation No 1612/68. The Worker Registration Regulations would be irrelevant because the derogation permitted from the usual position under EU law for Accession State nationals only applies to Articles 1-6 of Regulation 1612/68 (eligibility for employment) and not Article 12; which is a free standing right of residence. Teixeira would be relevant in this type of case.

As for those with no recourse to public funds it would all depend on whether the applicant was a family member of an EEA national who was a worker when the child started school -as was the case in Ibrahim. There was no restriction on access to public funds in Ibrahim but potentially such a person could fall within the restricted class’ of applicant (See: Sch 15 to the Housing and Regeneration Act 2008). The daughter would not be subject to immigration control because she would be exercising an enforceable Community right (An Atricle 12 right) but the mother probably would be subject to immigration control.

Although the decision in Zalewska concerned income support the outcome would be the same if she applied for housing accommodation from a local authority.