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18/05/2010

Ibrahim/Teixeira guidance

The DWP has issued guidance to decision-makers on benefit entitlement in the wake of Ibrahim and Teixeira (our report here) in the European Court, for when there is a likely Article 12 Regulation (EEC) No 1612/68 derived right for a child or children to remain to complete education. A copy of the guidance can be found here [link to PDF. Thanks to Disability Alliance]. The guidance is interesting not just for benefit entitlement, but it is a fair guess that housing authorities would follow a similar line.

A couple of things strike me about the guidance. One is the insistence that the Claimant must be primary carer AND parent (or step-parent) to be eligible. See para 7 and elsewhere. I’m not sure that this is so. Granted on the facts of Ibrahim and Teixeria, the carers were parents, but the Art 12 right belongs to the child, and, while a parent must have been a worker in the UK at some point, I can’t see how the ratio of those cases requires the primary carer to be a parent. The benefit/housing entitlement stems from the child’s right to remain and to be supported and cared for while they do. On that basis, the usual primary carer for the children would be the relevant claimant. Will this take another case to resolve?

Secondly, although I’m a lot less sure of my grounds here, the guidance is firm that children of A8/A2 nationals will not gain Art 12 rights unless the migrant worker has completed the necessary 12 months registered work. (Para 10). This would mean that although such a child might have been in school for a year, no Art 12 right to continue that education. Again, on the basis that the Art 12 right is the child’s, not the parents, I can’t see how this would work. I suppose the counter argument is that the accession migrant is not an EU worker during the ‘qualifying’ period, and thus the child can’t accrue Art 12 rights through their residence. I’m not convinced, but I am happy to have it explained to me. Preferably using short words.

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.

8 Comments

  1. Stephen O'Neill

    I am not persuaded that the DWP has got it right. The ECJ made it quite clear in Martinez Sala (Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-2691, para 63) that “a citizen of the Union … lawfully residing in the territory of the host Member State can rely on Article 6 [now Art 12] in all situations which fall within the scope ratione materiae of Community law.” The ECJ refers to a citizen of the Union, now a worker. It surely follows that to deny Art 12 rights to Accession countries is discrimination on the grounds of nationality.

    The DWP seem to think that only 12 months registered employment will be sufficient for Accession state nationals to acquire Art 12 rights. As Teixeira and Ibrahim pointed out, if every interruption or cessation of the migrant worker’s employment in the host Member State also resulted in the automatic loss of his children’s right of residence and, accordingly, they were obliged to interrupt their education (or they had no Art 12 rights at all), there is a risk of disadvantage in relation to their educational and career development. The children might, in those circumstances, be compelled to continue their education abroad, which, in view of the differences between national education systems and the languages of instruction used, could lead to significant problems. This disadvantage can be avoided only if the children of the migrant worker are given the opportunity including, specifically, in terms of the right of residence to continue and to complete their education and vocational training in the host Member State, irrespective of whether their parent is employed there as a migrant worker. This also offers the best means of ensuring that children of migrant workers can be fully integrated in the society of the host Member State.

    A migrant worker would have far less incentive to exercise his right to freedom of movement if he could not be sure that his children could obtain an education in the host Member State and complete that education successfully.

    In any event, if any right of residence of a parent (primary carer is probably sufficient) that may exist is ancillary to the child’s right of residence, how can it be that the Art 12 right does not exist unless the parent is or has been a worker?

    Reply
    • NL

      Stephen, these are exactly my doubts on the Accession issue, only considerably more cogently expressed. After all, if an Accession migrant is lawfully resident during the 12 months period, how can a child not accrue Art 12 rights?

      Incidentally, the guidance also separates workers and self-employed, stating that the children of a self-employed migrant wil not have the same Ibrahim/Teixeira Art 12 rights. Hmm.

      Reply
  2. Stephen O'Neill

    Paragraph 9 of the DWP guidance similarly tries to limit Article 12 by (1) suggesting that work of short duration will be insufficient to trigger Article 12 rights. That is inaccurate. In Barry v London Borough of Southwark [2008] EWCA Civ 1440, work of very limited duration (15 days) was sufficient. Though it did not last for long, there is nothing in the nature of work of short duration which suggests that it could fairly be regarded as an activity on such a small scale as to be regarded as purely marginal and ancillary. Employment might be ancillary if it is done pursuant to some other relationship between the parties which is not an employment relationship but the duration of work is not a conclusive factor in deciding whether a person is a worker (see Ninni-Orasche Bundesminister fur Wissenschaft Case C 413/01 at [25]).

    Paragraphs 11 and 12 when read with paragraph 7 are confused. The last sentence in paragraph 11 indicates that the migrant worker does not need to have been in employment before the child came to the UK or when the child was first installed in education in the UK (last sentence, paragraph 12). But paragraph 7(3) suggests that a person is only entitled to assistance if that person is working or has worked in this country, which is contrary to the reasoning in Teixeira.

    I am also doubtful that the claimant or child’s other parent (paragraph 7(2)) has to be a citizen of another EEA State. As long as the child is a Union citizen (other than the UK) the parent need only be lawfully resident in this country (Chen and Others (Free movement of persons) [2004] EUECJ C-200/02).

    Reply
    • NL

      On para 7(2), I read that as simply saying that one of the parents has to be EEA, not that the primary carer or claimant has to be.

      On para 7(3) – that is at the date of benefit claim by the primary carer, and refers to a parent, not necessarily the claimant/carer, so to that extent makes sense.

      Agreed that para 9 may be wrong, I haven’t seen theDMG para it refers to and whether that incoprporates Barry (our report on Barry is here, by the way).

      Reply
  3. kjetilniki

    1 Old DWP decisions

    “16 Where a claimant requests reconsideration of an earlier disallowance in light of the
    CJEU decisions in Case C-310/08 and Case C-480/08, and that earlier decision was
    made before 23.2.10 (the date of those decisions) the DM can supersede that
    decision for error of law1, effective from the date of request for reconsideration2. The
    DM cannot revise the decision for official error because the definition of official error3
    excludes any error of law which is shown to have been one by virtue of a subsequent
    decision of the court – in this context the CJEU decisions. The DM could not have
    known the true position in law until 23.2.10.”

    having regard to the earlier case of baumbast it is at least arguable that it is wrong for the DWP to state they could not have known the true position.
    In Baumbast they didn’t spell out all the things that wouldn’t change the situation, but neither does the fact that the child need not have blues also.

    claimants should surely claim official error and appeal if not allowed

    2 PARENT/NOT

    One must point out that the grandchamber in their ruling did use the phrase “the parent who is the primary carer”

    However despite that I agree with NL that the ratio is that the primary carer has the parasitic right whether or not a parent.

    3 at what age does the “state’s general educational …… courses” begin?

    DWP says:

    “General education does not include play
    school or pre-school schemes. It usually starts around age 5.”

    however with primary school nursery classes pre and also the govt schemes to get everyone into education by 4 with education components to pre compulsory school this must be wrong esp with nursery classes at primary school

    Reply
  4. Stephen O'Neill

    The decision in Teixeira and Ibrahim amounts to a quantum leap forwards in European Union law on the free movement of persons. It develops the position as it has stood since Baumbast but is gradually eroding the concept of ‘free movement of workers’ to ‘free movement for citizens of the Union’.

    It is a little unfortunate that the ECJ referred, in its ruling, to parents who are the primary carer of a child exercising the right to pursue his or her education because Article 7 of Regulation No 1612/68 refers only to family members. According to the definition in Article 2(2)(c), for the purposes of Directive 2004/38 the term ‘family member’ means: ‘the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner’. The word ‘or’ seems to suggest that only dependency is important.

    I think the word ‘parent’ should be read as meaning a person with ‘parental responsibility’.

    Reply
  5. Suzanne McClure

    Paragraph 7 of the guidance at point 4 appears to limit the scope of Teixeira, in that 7.4 states that one of the requirements for a right to reside under Teixeira is that the child ‘…had entered general education in the UK whilst the migrant worker also lived in the UK’.

    My understanding of Teixeira, at paras 71-75, is that it requires only that the child is installed in the host state at at time when their EEA parent is working in that state, and not that the child is in education. It seems to me that the guidance goes further than that in requiring the child to be in education ‘whilst the migrant worker also lived in the UK’.

    Reply
    • NL

      Suzanne, that is an interesting point. I agree that 71-75 could be read in the way you suggest. But on the other hand Article 12 says, at para 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.’

      Note the ‘and are enrolled’, which is at the point of death/departure of the migrant worker/former worker. Neither Ibrahim nor Teixeira turned on that point, so it may well be one that needs further argument.

      Reply

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