Think of the children: right to reside through a child

 

Martin Williams sets out the situations in which a person may have a right of residence in order to facilitate the right of residence of a child. The article highlights recent changes in the DWP position and forthcoming cases in the ECJ.

The requirement that a claimant has a ‘right to reside’ applies in one way or another as a condition of entitlement to income support, income-based jobseeker’s allowance, income-related employment and support allowance, pension credit, housing benefit, council tax benefit, child benefit and child tax credit.

A structured approach to advising a claimant on whether s/he has a right of residence sufficient to claim one of these benefits, involves looking for a right in the following order.

1. Consider whether the claimant has a right of residence in her/his own right (eg, because s/he is a worker or self-employed person or retains one of those statuses, or has attained a right of permanent residence).

2. The next stage is to consider whether the claimant has a right of residence as the family member of someone who has such a right (eg, her/his spouse, from whom s/he is separated, is a worker, or s/he is a child aged under 21 of someone who retains self-employed status, etc) or was a family member and now retains such status (see Articles 12 and 13 of Directive 2004/38 and Regulation 10 of the Immigration (European Economic Area) Regulations 2006 No. 1003).

3. Next, consider whether the claimant may have a right of residence in order to facilitate the right of residence of a child.

This article focusses on the last of these steps. The caselaw of the Court of Justice of the European Union (ECJ) has identified a number of situations where, in order to enable a child to exercise a right of residence, it is necessary for her/his primary carer to also be regarded as having a right to reside. Below, the scenarios in which a child may have a right of residence which means her/his primary carer might also need to be accorded such a right are considered.

The best known, and most frequently relied upon, child’s right of residence which necessitates a right of residence being accorded to the child’s primary carer is that which arises under Article 12 of EC Regulation 1612/68 (from 1 June 2012, Article 10 of Regulation 495/2011). Article 12, gives a right to enter and complete education1 Defined in SSWP v IM (IS) [2011] UKUT 231 (AAC) as compulsory education. to the child of someone who is or has been a migrant worker in the state in which the migrant works (or worked). In Case C-413/99 Baumbast and R v SSHD [2002] ECR I-07091, the ECJ held that for this right to education to be effective, the child must have a right of residence. The Court went on to hold that the primary carer of the child must also have a right of residence in order to facilitate the child’s right of residence. In Case C-480/08 Teixeira v LB Lambeth [2010] ECR I01107 and Case C-310/08 LB Harrow v Ibrahim [2010] ECR I-01965, the Court clarified that the rights of residence held by the child and her/his primary carer in this instance did not depend on either of them having sufficient resources to avoid being a burden on the social assistance system of the UK.

Following those judgments, the Department for Work and Pensions (DWP) issued guidance to decision makers (Memo DMG 30/10). Part of that guidance insisted that for a child to have acquired the right to enter education (and consequently for her/his primary carer to have a right of residence), there needed to be a ‘common period’ where (1) the child was in education and (2) one of her/his parents was in employment.

The DWP has now accepted that its insistence on a common period was wrong. As long as the child has been in the UK while the parent has had a right of residence as a worker (including retaining worker status), if s/he goes into education after the parent has that status, or before the parent has started work, the test is met. A new memo (Memo DMG 21/12) signals this about-face.

Decision makers are advised to revise (on grounds of official error) any decisions ‘which come to [their] attention’ that were based on the incorrect position they had previously had to adopt. Advisers with on-going appeals where this point is in issue, or who have had clients refused benefit on the basis there was no ‘common period’ of work and education which have not been appealed, should assist such claimants to apply for revision. If claimants have lost appeals because the tribunal wrongly adopted the DWP’s mistaken view, the only remedies are to seek permission to appeal (which may sometimes require a late application for permission), and/or to seek compensation from the DWP.

The DWP remains of the view that a child with a right to education here (because one of her/his parents was a worker) who leaves the UK, for other than a temporary reason, will lose the right to enter education on her/his return, and her/his primary carer will not be able to derive a right of residence through the child (para 15 Memo DMG 30/12). The Memo suggests that periods of six months or less should be regarded as temporary and so too should longer periods ‘depending on the reasons for the absence’. This proposition may also be wrong. In joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 00723, the ECJ made it clear that a child who had left the state in which his parent had been a migrant worker for a period of time (15 months) nonetheless still had a right to reside in order to continue his education on return to that state. The issue for the Court appeared to be that renewed studies were a continuation in the host state of those previously undertaken: it was this connection with previous education that was relevant rather than the reasons for the absence.

CPAG has argued that the primary carers of children receiving education, where a parent is or was self-employed in the UK have identical rights to children of worker or former workers in a similar situation. The judgment of the ECJ on this point is awaited in the joined cases of C-148/11 Punakova and C-147/11 Czop (judgment will not be prior to July 2012).

Who can count as a primary carer? DWP Memo 30/10 also suggested that only a parent could have the right of residence of a primary carer. The DWP does routinely accept that where both parents live together then both should be regarded as having a Teixeira-type right of residence (see the Northern Ireland case of MA v DSD (JSA) [2011] NICom 205). It is also arguable that someone who is not a parent can have a right of residence as the primary carer of the child of a worker: provided the facts show clearly that the person is the primary care (see CPC/1935/2010 at para 15 – neutral citation not yet known).

In Case C-34/09 Zambrano v ONEm [2011] ECR NYR, the claimant and his wife were Colombian nationals. They applied for asylum in Belgium. That was refused, but while they were in Belgium they had two children who acquired Belgian nationality – ie, under the relevant Belgian law. They applied to take up residence as ascendants of a Belgian national; Mr Zambrano also applied for unemployment benefit. Both applications were rejected. That decision was the subject of a further appeal, and was referred to the ECJ.

The ECJ allowed the claimant’s appeal. The Court held that Article 20 of the Treaty on the Functioning of the European Union precluded national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. Regarding the facts of this case, the Court said: ‘a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside...has such an effect’ (paragraph 43). That was because, said the Court, ‘it must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents...In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union’ (paragraph 44).

In Case C-256/11 Dereci and others v Bundesministerium für Inneres [2011] ECR NYR, the Court considered the scope of its decision in Zambrano. The circumstances of the litigants were somewhat different from those of the Zambrano family. There were a number of litigants whose cases were linked in the referral. All were third-country nationals and had their applications for residence permits in Austria refused. They were all, in one way or another, the ‘family members’ of Austrian nationals. The facts of Mr Dereci’s case are the most relevant: Mr Dereci, a Turkish national, entered Austria illegally and married an Austrian national with whom he had three children who are Austrian nationals and who are still minors. Mr Dereci lived with his family.

Crucially, the difference between this case and that of Zambrano was that there was no possibility of the Austrian nationals, of whom the litigants were family members, being deprived of their means of subsistence (see para 32) and having to leave the EU if the rights of residence of the litigants were not recognised.

The Court held that the issue boiled down to whether or not the denial of residence permits to Mr Dereci and the other litigants would have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status. The Court decided that this depended on whether the Austrian nationals would, if a right of residence was not accorded to their family members, have to leave the EU altogether (para 66) and that the litigants did not meet this test.

The DWP has issued guidance on the Zambrano/Dereci cases in Memo DMG 7/12. It advises decision makers to refuse all such arguments where the claimant is themselves an EU national and requests cases where the claimant is a third-country national to be referred to a specialist unit in Leeds.

However, a recent opinion of the Advocate General (AG), in a case awaiting final judgment (Case C-40/11 Iida), shows that the issue of whether or not residence rights need to be accorded to the primary carer of a British child may not depend solely on whether or not that British child would otherwise have to leave the EU. The AG highlights that in Dereci the ECJ left open the possibility that a refusal of a right of residence to the litigants would undermine the right to respect for private and family life provided for in Article 7 of the EU Charter of Fundamental Rights (see Bulletin 225) or Article 8 (right to respect for family life) of the European Convention on Human Rights. The AG then goes on to consider how to approach the question of whether these and other Charter rights would be infringed if residence rights were not granted, given the facts of the particular case he is considering. The AG notes that, on those facts, the fundamental rights of particular importance are the right of the child to maintain on a regular basis a personal relationship and direct contact with both parents (Article 24(3) of the Charter) and respect for family life (Article 7 of the Charter). The AG is of the view that whether or not denial of the right of residence of a parent of an EU child will constitute interference with a fundamental right depends on the specific circumstances of each case. The final decision in Iida is awaited, but if the ECJ follows the opinion of the AG arguments that a right of residence must be recognised for a parent of an EU national child, in cases where that child would otherwise not be able to maintain regular contact with a parent were such a right not recognised may succeed. As the AG observes:

Cases where the issues raised by Zambrano and Dereci arise are likely to be ones where there is a British child and the claimant is a parent and/or primary carer of that child. In cases where the claimant is a third-country national and is the parent with actual care of the child, the arguments in favour of recognising a right of residence are strong. However, even where the claimant is also an EU national, and even perhaps not the primary carer of the child, advisers can still attempt to argue that if the claimant is denied a right of residence the child will not be able to maintain meaningful contact with both their parents. Obviously, the detailed facts of each case will need to be considered – to what extent does the claimant play a role in the child’s life and what contact could exist were the parent not in the UK but in some other EU state etc?

There is one further group it is worth considering: those who are the primary carers of the child of someone who is currently economically active (or retains such a status) or has a permanent right of residence. In many cases such persons will have a right of residence under Teixeira or will themselves be a family member of the economically active person etc. However, the primary carer of such a child, where the child has not yet started school, and who is not married or otherwise a family member of the economically active person will have no such right of residence.

It is possible to argue that a person in this position may have a right of residence in order to allow the child (who is a family member of the worker) to exercise her/his right of residence.

Firstly, in such cases what is absolutely clear is that the child does have a right of residence for so long as the parent s/he is not living with retains her/his worker status (there being no requirement for a child aged under 21 to live with or be dependent on the worker – see CF/1863/2007).

It has to be observed, that every time the ECJ has considered a situation where a child has a right of residence, and the question has arisen about the right of residence of the primary carer, the Court has immediately moved on to say that the primary carer must also have a right of residence to render the child’s right effective. In the cases thus far considered the basis of the child’s right of residence has not changed that conclusion. Thus:

Thus, in all these different scenarios, the ECJ went on to find that the fact that the child had a right of residence meant that her/his primary carer too had to have such a right (to facilitate that of the child). It can, therefore, be argued that whenever a child has a right of residence then the primary carer of that child must have a right of residence. Furthermore, it can be argued that to deny the primary carer of the child of a worker a right of residence would, because it would deprive the worker’s child of an effective right of residence, restrict the right of that worker to move freely to work within the EU and possibly would raise similar articles under the charter to those highlighted by the AG in lida.

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