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26/02/2010

Right of residence and children in education

LB Harrow v Ibrahim C‑310/08 on reference from the Court of Appeal (LB Harrow v Ibrahim and another [2008] EWCA Civ 386. Our note here).

The question was whether:

(a) children of EU citizens who have installed themselves in a member state during the exercise by their parents of rights as residence as workers in that state are entitled to reside in the state in order to attend general educational courses;

(b) a parent who is the primary carer of those children – irrespective of his or her nationality – is entitled to reside with the children in order to allow the children to exercise that right. The fact that the parent who is a citizen of the EU is no longer working in that state and has left the state is irrelevant;

Mrs Ibrahim is the wife of a Danish man, who worked for a period in the UK. Following an illness and a period on benefits, Mr I’s right to reside ended and he returned to Denmark. However, Mrs I and their four children, who had joined Mr I, remained in the UK and the children had been in school throughout. Mrs I applied as homeless and Harrow refused her as ineligible.

The Court of Appeal referred the following questions to the European Court:

(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?

On (1) and (2) the European Court found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091 and Case C‑7/94 Gaal [1995] ECR I‑1031, it was clear that a child’s right to reside under Art 12 was independent of Articles 10 and 11, regardless whether the parent who is a citizen of the union has ceased to be a migrant worker in the host state. A refusal to allow the parent with care to reside during the children’s education would deprive the children of their right under Art 12. In paragraph 23 of Gaal, the Court expressly stated that Article 12 of Regulation No 1612/68 contains no reference to Articles 10 and 11 of the regulation.

Further

as is apparent from the very wording of Article 12 of Regulation No 1612/68, the right to equal treatment in respect of access to education is not limited to children of migrant workers. It applies also to children of former migrant workers.

The right derived by children from Article 12 of Regulation No 1612/68 is also not dependent on the right of residence of their parents in the host Member State. It is settled case-law that Article 12 requires only that the child has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal, paragraph 27).

To accept that children of former migrant workers can continue their education in the host Member State although their parents no longer reside there is equivalent to allowing them a right of residence which is independent of that conferred on their parents, such a right being based on Article 12.

Directive 2004/38 did not alter Art 12, as contended by Harrow and the UK. Where that directive amended Art 10 and 11, it did so specifically, and the absence of specific address to Art 12 showed the intention of the European legislature. Indeed, the directive was intended to be consistent with Baumbast. There was no intention to limit Art 12 to a mere right to access to education. Directive 2004/38 has the stated purpose of strengthening the right of free movement, but if it replaced Art 12 in the same way as it did Art 10 and 11, then the Art 12 right would be more restricted that before.

On sufficient resources, there is no requirement in Article 12 for self sufficency and, following Baumbast, the Article must not be rendered ineffective.

The Court, in a case where it had to rule on whether children who were resident in the Member State in which their father, a national of another Member State, had been employed before returning to his State of origin were entitled under Article 12 of Regulation No 1612/68 to State assistance intended to cover the costs of their education, the maintenance of them and their dependants and sickness insurance, held, without ruling on the economic situation of the students in question, that the status of children of a worker who is a national of a Member State within the meaning of Regulation No 1612/68 implies, in particular, that it is recognised in European Union law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host Member State, that requirement applying afortiori where the persons covered by the provisions of that regulation are students who arrived in that State even before the age at which they had to attend school (Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 35).

Therefore

the answer to the first two questions is that, in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

There was accordingly no need to answer the third question.

In short, where the children of a EU worker have entered education in the UK, then there is a continued right to reside for the children and the parent who is their carer (whether an EU citizen themselves or not) for the duration of the course of education, regardless whether the marriage to the EU worker subsists or if the EU worker remains in the UK. This is an independent right belonging to the children. There is no requirement for self-sufficiency on the part of the family or parent with care. The family therefore has a right to reside and eligibility for support, including housing.

Case C‑480/08 Texeira v LB Lambeth (on reference from Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088 (our report here) ) has also been decided. The basic issues on reliance on Art 12 were the same, with the additional questions being:

i) 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, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

and

ii) 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?

On i) the European Court found that it is sufficient that the child became installed in the host country at a time when a parent was a worker and there was no requirement that the child must have started education at a time when the parent was a worker.

On ii)

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, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

Overall, Ibrahim was a big case for Shelter and Nicola Rogers to bring and a significant decision. Naturally the Daily Mail didn’t like the result, apparently on the basis that Mrs Ibrahim has a 36 inch TV and a Playstation, this apparently being sufficient to make the law an ass. I wonder if the practical benefit of the decision for the Mail’s ex pat readership on the fringes of the Med had occurred to them?

Tiexiera was brought by Hanse Palomares, Adrian Berry and R. Gordon QC acting.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

16 Comments

  1. The.Dark.One

    Driving a horse and coaches through The Accession (Immigration and Worker Registration) Regulations 2004 (No. 1219).

    Reply
  2. S

    NL – its not just the Mail. The Guardian’s Polly Toynbee would also appear to be a sceptic. Although she gets her news from the Harrow Times (who not unsuprisingly failed to report the reason why she was entitled to accommodation) and I would fathom has not read the judgment.

    http://www.guardian.co.uk/commentisfree/2010/feb/27/our-borders-are-porous

    The Guardian comment section is bloody awful these days.

    Reply
  3. kjetilniki

    housing lawyers should be aware of other matters relating to right to benefits and social assistance and issues as to right to reside that have not yet been settled a outside apparent rights.

    In ILPA’s latest mailing there is a note of some sterling work being done by the AIRE centre.

    There is now support from the commission and it is the view of the EC that it is unlawful to refuse SS benefits covered by reg 1408/71/EEC on the sole basis that the person concerned does not have a right to reside in the UK,
    contradicting Zalewska [2008]UKHL 67 and Patmalniece [2009] EWCA Civ 621.

    the benefits include IBJSA. IESA, PC, CB, & CTC.

    the test of RTR being contrary to the equal treatment clause contained in art 3 of 1408/71

    where a social advantage under 1612/68 is not a benefit covered by 1408/71 then it is caught by the equal treatment guaranteed by art 24(1)of 2004/ec/38
    these would include preganancy grants, HB CTB, Inc Support Crisis loans

    Further A8 nationals who require regn and are regd and have stopped working in circumstances described in art 7(3)2004/ec/38* should be able to access social assistance even tho not done 12 months and not currently in employment.

    * includes
    !(a)temporarily unable to work due to illness or accident
    ! (c)also duly recoreded involuntary unemployment after finishing fixed term contract of less than 12m
    ! after ebcomiong involuntary unemployed during 1st 12m + regd as jobseeker — to retain status for at least 6m

    ! (d) starting vocational training — relating to previous employment unless involuntarily unemployed

    Letter from Jackie Morin Head of Unit in the EC’s Employment, social affairs and equal ops Directorate dated 4th feb 2010 addressed to Director of Aire & Chaiman of ILPA

    the letter also states the unit is also in the process of proposing to the comission to formally raise with UK in 2 different procedures

    Reply
  4. kjetilniki

    even inside housing are part of thre gutter press establishent

    “A court has ruled a Somali woman is entitled to a council house and other state benefits, even if she is a ‘burden on the state’.

    Nimco Hassan Ibrahim, who has children in UK schools, was told on Tuesday she has a right to a council house in Harrow, even though she has no right of residence in the UK under EU law.

    EU judges in Luxembourg ruled parents caring for the children of migrant workers and resident in EU countries are covered under EU rules on freedom of movement, including those who cannot support themselves. …….”

    http://www.insidehousing.co.uk/story.aspx?storycode=6508748

    Reply
  5. JH

    Anyone have any thoughts on how this will affect the many DV cases classed as having ‘no recourse to public funds?’

    Reply
    • NL

      DV cases? Why wouldn’t they fall under it, assuming the children in education/EU worker etc. conditions are met?

      Reply
  6. Stephen O'Neill

    Zalewska (AP) (Appellant) v Department for Social Development (Respondents) (Northern Ireland) [2008] UKHL 67 was a case concerning domestic violence.

    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.

    Reply
  7. NL

    Teixeira says that it is enough that the child came to the host country when the parent was an EU worker, not that they needed to enter education while the parent was a worker.

    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.

    Reply
  8. Stephen O'Neill

    In its judgement the ECJ expressly recognised the direct effect of Article 12. Nevertheless, even though declared to be directly effective Article 12 does not create a generalised right for all Union citizens. The nature of Article 12 does not exist until it is being exercised. Teixeira and Ibrahim should, in my view, be interpreted as strengthening the rights of children to equal treatment in access to education not‘ex-migrant’ workers, i.e. Article 12 can only be relied upon as a last resort by migrant children where the parents have no other claim to residence, rather than being there for the clear benefit of ‘non-migrant’ workers.

    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.

    Reply
  9. NL

    Stephen,

    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.

    Reply
  10. Stephen O'Neill

    It is true that Teixeira was not a worker when the daughter entered education but it is clear from the reference (para 4) that she was working until early 2005 when the daughter was in school. Nothing is said about the father who is also a Portugese national and presumably had some means of supporting his daughter because there was a residence order in his favour from June 2006.

    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.”

    Reply
    • NL

      Stephen, are we reading the same judgment?

      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.

      Reply
  11. Stephen O'Neill

    I can see your point but at Para 74 and 75 the ECJ is looking at education in the broader sense. The right to education where school attendance is compulsory is set out in Directive 77/486/EEC which refers only to dependents of a worker. The title itself is called, ‘Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers. Directive 2004/38 did not repeal Directive 77/486.

    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?

    Reply
  12. NL

    But then Ibrahim makes no sense – children in school, and decided wholly on Article 12. There is also nothing in Teixeira that distinguishes between school and other education (and nothing in the questions referred by the Court of Appeal likewise). ‘Education’ in the general sense is used throughout. The distinction you make is not part of these judgments (not clear whether it was argued, but there is no mention of Directive 77/486 that I can see). I stand by my interpretation…

    Reply
  13. Stephen O'Neill

    The Ibrahim children started school at the beginning of 2003. If the eldest child was 9 in October 2007 then he must have been either 4 or 5 when he started school. The compulsory school age in the UK is 5 -so it is possible that he entered education at a time when it was not compulsory to do so.

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

    Reply
    • NL

      Stephen, that just doesn’t wash – even if both the elder children started school before they had to, and there is no evidence on this – the course of education they were in was compulsory from age 5 onwards and would therefore fall under 77/486 on your argument anyway.

      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.

      Reply

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