A Court of Appeal case, concerning eligiblity for housing assistance via EU status

London Borough of Harrow v Ibrahim & Anor [2008] EWCA Civ 386 (21 April 2008)

The facts are, briefly, Mrs Ibrahim is a Somali national, married to a Danish national. He came to the UK in 2002 and worked until 2003, when he claimed incapacity benefit to 2004. He was then declared fit. He didn’t take up work and left the UK shortly afterwards. he returned in December 2006 and remained without work.

Mrs Ibrahim and their four children joined Mr Ibrahim in the UK in Feb 2003. The children started school in Harrow and have remained in school ever since. Mrs I is separated from her husband, has not worked and relies on benefits. In January 2007 she applied as homeless. Neither Mr nor Mrs I qualify as having a right to reside as worker, work-seeker or self-sufficient. So, unless the children had a right to reside, they would be subject to immigration control and not eligible for housing assistance. Mrs I as carer relied upon her children’s right to reside.

After a negative s.184 decision and s.202 review, the Recorder in a s.204 appeal found for Mrs I, that the children had a right to reside under art 12, Regulation (EEC) No 1612/68 (the 68 reg). Harrow appealed.

The issue is deceptively simple. It has long been held that children of an EU citizen (or the spouse of an EU citizen) who at one point had the right to reside, as a worker or otherwise, and who entered education in the host country when that right was being exercised, had the right to reside in order to continue that education, via Art 12 of the 1968 regs. This was regardless of whether the initial person had ceased to have the right to reside or had left the country. Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091

However:

• Baumbast concerned people who were self-sufficient, without specifically referring to or addressing the fact.
• More importantly, the 68 reg had been, at least largely, supplanted by the Directive 2004/38/EC of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law in the (European Economic Area) Regulations 2006 (the “2006 Regulations”).

The 2004 Directive was intended as a unifying of the previous piecemeal right to reside provisions. But it did not expressly repeal art 12 of the 68 regs, when it did expressly repeal other articles (10 and 11) in the same Regulation.

The 2004 Directive (and the 2006 Regulations) hold;

• that the right to reside to continue education is available when the parent who initially had the right to reside has died or left the country.
• that “Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.” (Art 14 2004 Directive). But residence as worker does not have such a condition, see Art 7(1)(a) 2004 directive.

Mrs I contended that, as art 12 of the 68 reg was not repealed, the broad principle of art 12 and Baumbast remained. Mrs I’s situation was a lacuane in the 2004 Directive as Mr I had not died and had lost the right to reside as worker/workseeker by the time he left the UK. There was no requirement of self-sufficiency to reside as a worker and was none in the 2004 Directive. Baumbast had held no such requirement.

Harrow and the Secretary of State as intervener contended that the 2004 Directive is the sole source of rights of residence and was clearly intended to incorporate Baumbast. That Art 12 wasn’t repealed didn’t matter when Art 10 of the 68 reg was repealed, as Art 10 was the source of rights of residence. In any case, the 2004 Directive made self-sufficiency an over-arching requirement for any other right to residence other than the specific exception of a worker and his family. So Mrs I didn’t meet the conditions as i) she wasn’t self-sufficient and ii) Mr I fell outside the Directive as he was neither dead, nor a worker/work-seeker when he left the UK.

The Court of Appeal leaned towards Harrow’s view, but found that the issues are not acte clair, in particular on the concept of ‘departure’ in the 2004 Directive and how far Baumbast could give an independent right to reside based on Art 12 of the 68 reg alone. So they referred questions to the European Court. Specifically:

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?

Hmm. Interesting. This could affect a fair few people.

Nicola Rogers was instructed by Shelter for Mrs Ibrahim. Kelvin Rutledge and Sian Davies were instructed by Harrow, and a brace of QCs, Clive Lewis QC and Elisabeth Laing QC for the Secretary of State for the Home Department.