Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088 is a Court of Appeal hearing, referring questions about right of residence under Art 12 of Regulation (EEC) 1612/68 to the European Court. (This is very much a continuation of the issues in LB Harrow v Ibrahim [2008] EWCA Civ 386 – see this previous post on Nearly Legal).

The appellant is a citizen of Portugal, living in the UK since 1989. One of her children was living with her and was in full time education in London. Ms Teixeira had at one point been working but was no longer doing so, nor seeking work.

Ms Teixeira applied to Lambeth Council as homeless, claiming a right to reside under article 12 of Regulation (EEC) 1612/68 (Article 12), which states:

“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.
Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

Ms Teixeira claimed that as her daughter was in full time education, she was not subject to immigration control and so not excluded from entitlement to housing assistance. Baumbast v Secretary of State for the Home Department, Case C-413/99, [2002] ECR I-07091 was raised.

Lambeth decided she was not eligible, upheld on s.202 review. At s.204 appeal at Lambeth County Court, HHJ Welchman decided that Art 12 could not assist Ms Teixeira as it was and remained a requirement that she should not be dependent on public funds. Shortly afterwards, the Court of Appeal decided LB of Harrow v Ibrahim [2008] EWCA Civ 386, which had referred reliance on Art 12, in a case where the mother was not an EU national, but the children were and were in school in England, to the ECJ.  It is worth noting that the Court of Appeal in that case was distinctly doubtful about whether Art 12 gave a right to reside that would in itself escape the self-sufficiency requirements (which were not at issue in Baumbast).

Ms Teixeira was granted permission to appeal, and questions referred to the ECJ. The questions are as follows:

In circumstances where (i) an EU citizen came to the United Kingdom (ii) the EU citizen was for certain periods a worker in the United Kingdom (iii) the EU citizen ceased to be a worker but did not depart from the United Kingdom, (iv) the EU citizen has not retained her status as a worker and has no right to reside under Article 7 and has no right of permanent residence under Article 16 of Directive 2004/38 of the Council and the European Parliament (v) the EU citizen’s child entered education at a time when the EU citizen was not a worker but the child remained in education in the United Kingdom during periods when the EU citizen was in work in the United Kingdom, (vi) the EU citizen is the primary carer of her child and (vii) the EU citizen and her child are not self-sufficient:

(1) does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 of the European Parliament and the Council of 29 April 2004?;

OR

(2)(i) does the EU citizen 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 she 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?;

(iii) if so, must the child have first entered education at a time when the EU citizen was a worker in order to 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, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

(iv) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the child commenced education 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 but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, ie after the date by which the Directive was to be implemented?

Hmm. This matter is, in some ways, more straightforward than the Ibrahim situation, as it is not complicated by the departure of the EU national from whom right to reside originally arose. Hopefully, the referral will be considered with Ibrahim, because otherwise we are in for a very lengthy wait indeed.

Counsel for Ms Teixeira was Adrian Berry, instructed by Hansen Palomares. Toby Vanhegan was instructed by Lambeth Legal and Clive Lewis QC and Deok Joo Rhee for the Treasury Solicitor.