An interesting argument emerged before the Court of Appeal in Lekpo-Bozua v Hackney LBC (SoS for Communities and Local Government joined as interested party) [2010] EWCA Civ 909. The issue arose around the difference between, on the one hand, an entitlement to the main housing duty under section 193, Housing Act 1996, to successful homelessness applicants, and, on the other hand, the duty owed in “a restricted case” under section 193(7AA). The restricted case material was inserted into the 1996 Act (finally) by section 314, Housing and Regeneration Act 2008, in order to deal with the declaration of incompatibility found in R(Morris) v Westminster CC [2006] 1 WLR 505 on the previous provision (disregard of applicant’s ineligible child for Part VII). A restricted person is someone who is ineligible, or subject to immigration control, and either doesn’t have leave to enter or remain in the UK or whose leave is without recourse to public funds. Where a household includes such a person they are subject to the restricted duty in section 193(7AA)-(7AD). In summary, the duty ceases if the household is made an offer of a private sector tenancy (an AST will do) and the authority is encouraged to bring their duty to an end in this way (see s 193(7AD)).
Ms Lepko-Bozua was seeking to avoid the application of section 193(7AA). She is British but her niece, who has the lovely name Océane (with an acute accent on the first e), has lived with her (and her ex) in the UK for about nine years. Ms Lepko-Bozua became homeless as a result of DV from her ex. Hackney found that Océane was a restricted person because she was not a qualified person under regulations 4 and 6, Immigration (European Economic Area) Regulations 2006. They also found that she had not “resided legally for a continuous period of five years” in the UK (see Article 16, Directive 2004/38/EC). On the s 204 appeal, it was found that she was not a qualified person (even though she was in education, she did not have comprehensive insurance cover in the UK and couldn’t give the sufficient resources assurance – see reg 4(1)).
The argument for her was that she had, in fact, “resided legally” in the UK for five years in accordance with Art 16. The legality derived from the fact that she had not been removed from the UK by the SoS. Now, this is an argument that I have also been looking at, quite separately, and found quite attractive (despite a nagging doubt). Consider Recital 17 to the Directive, which requires “compliance with the conditions laid down in this Directive” for the right to permanent residence (conditions such as not being an unreasonable burden on the social assistance system of the host state). The Court of Appeal dismissed the argument for Ms Lepko-Bozua pretty much out of hand:
Asked by the Court for the legal principle on which his submission rested, Mr De Mello struggled to answer. He was not promoting a kind of prescription, but was promoting a variety of waiver. He pointed to Recital 21 of the Directive which provides for host Member States to decide whether to grant social assistance before a person has acquired a right of permanent residence. He struggled to rationalise the selection of a period of 5 years for the operation of his variety of waiver, when Océane does not come within Article 16 of the Directive which is the origin of a period of 5 years. It might just as well on his argument be 2 years or 20. He did not begin to establish a basis in EC law for the variety of waiver for which he contended. ([17])
Residing “legally” means as per Recital 17 in compliance with the Directive’s conditions. Océane “remained [in the UK] upon tolerance subject to immigration control with no right to remain” ([18]). The Court cites McCarthy v SoS for Home Department and Abdirahman v SoS for Work and Pensions in support, and explained (politely) a comment made by Kay LJ in Kaczmarek v SoS for Work and Pensions (at [23]) as well as R(Badar) v Ealing LBC (irrelevant as right of residence was not contested).
Interesting argument, but unsuccessful – s 193(7AA) applied.
Although under Article 16(1) of Directive 2004/38, a Union citizen must have resided legally for a continuous period of five years in the host Member State in order to acquire a right of permanent residence; according to Article 37, Directive 2004/38 expressly does not affect any more favourable laws, regulations or administrative provisions laid down by a Member State. To that effect, Case 247/86 Alsatel [1988] ECR 5987, paragraphs 7 and 8 and paragraphs 116-121 of the Advocate Genera’s opinion in Teixeira. It is not necessary for a person to have permission to live in the host Member State as that only has declaratory force. It is also not necessary for a person to be self-sufficient or have sickness insurance for the whole period of residence: Trojani, paragraphs 39 to 45. Any news on an appeal?
I’ve got to say that I agree with this decision and this has always been my view. I’m not a lawyer but surely ‘who has resided in accordance with these regulations’ means just that. Not resided here and not been deported or told otherwise, but resided here for 5 years with the right of residence for 5 years as laid out in the regulations.
Odd that there was no consideration below of whether the applicant was in priority need in her own right as fleeing domestic violence .
I do not understand where the Court of Appeal was going with this case. The judge decided that Océane did not have a right to reside permanently in the United Kingdom because she had not resided in the United Kingdom in accordance with the regulations for a continuous period of 5 years. She was not a qualified person because, although she may have been at a private or public educational establishment for the principal purpose of following a course of study, including vocational training, she was not a student within regulation 4(1)(d), because she did not have comprehensive insurance cover in the United Kingdom and was unable to give an assurance that she had sufficient resources not to become a burden on the social assistance system of the United Kingdom.
This was accepted before the judge by her counsel, but in my view wrongly accepted, because the ECJ in Teixeira and Ibrahim made it clear that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.
Océane was 16 when she and her mother became homeless and had resided in the UK for 9 years. Presumably during that time she was at school. If the child was exercising her right of education for a continuous period of 5 years she has a right of permanent residence. It is trite that residence alone will not provide a right of residence where none previously existed, but in my view Hackney’s revieiwng officer should have looked at Teixeira and Ibrahim and then decide whether the child had a free-standing right of residence on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38.
Although Océane’s primary carer is a British citizen, a parent or primary carer of a child would have far less incentive to bring the child to this country unless he could be sure that the child could obtain an education and complete that education successfully. There is a risk of disadvantage in relation to their educational and career development. The child 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 child has the opportunity including, specifically, in terms of the right of residence to continue and to complete their education and vocational training in this country, irrespective of whether their parent is British or an EEA national themselves.
This also offers the best means of ensuring that migrant children can be fully integrated in the society of the host Member State. Any other view would entail the British national being unable to live in his own country. That cannot be right.
Stephen:
“Océane was 16 when she and her mother became homeless and had resided in the UK for 9 years. Presumably during that time she was at school. If the child was exercising her right of education for a continuous period of 5 years she has a right of permanent residence.”
My understanding is that right of residence under Article 12 does not carry with it a permanent right of residence? My understanding was that it ceased when the child reached majority or finished eduction, whichever the sooner?
It is trite that residence alone will not provide a right of residence where none previously existed. The question is whether residence under Art 12 is sufficient on the basis of the jurisprudence in Teixeira. There is nothing in the instant decision to suggest that Océane’s parents residence in their capacity as primary carer or parent, or her residence subsequently, might have been illegal whilst in education. The mere fact that the parents were not continuously self-sufficient is not sufficient for a presumption of illegal residence(Trojani, paragraphs 39 to 45)
Residence under Art 12 in order to receive or continue education is not illegal. According to Article 37 of Directive 2004/38 any more favourable laws, regulations or administrative provisions laid down by a Member State, independently of Community law is not prohibited. If residence under Article 12 is not illegal and primary education as set out in articles 28 and 29 of the Convention on the Rights of the Child refers is compulsary, can it really be said that that residence cannot count?
Against that background, it cannot be ruled out that Océane has acquired a right of permanent residence in the United Kingdom pursuant to Article 16 of Directive 2004/38, which has released her from the obligation to prove that she has sufficient resources and comprehensive sickness insurance cover. It is surprising, therefore, that Océane’s carer or parent accepted in the main proceedings that Océane was not entitled to a right of permanent residence.
I’m doing a whole batch of these – PTA refused by Supreme Court on 2 November.