‘Baumbasted’! The right to reside test for claimants with children in education

 

Graham Tegg examines the implications of two recent judgments from the European Court of Justice (ECJ).

In Bulletin 213 we reported on the opinions of the Advocates Generals in the cases of Teixeira (EUECJ C-480/08) and Ibrahim (EUECJ C-310/08), which confirmed that European Union citizens who had worked in the UK and their family members could claim a right of residence here on the basis of being a primary carer of a child in education (the so called ‘Baumbast principle’ established in the earlier ECJ case of Baumbast Case C-413/99). The ECJ has now given judgment in both cases, holding in clear and forthright terms that the children of EU workers or former workers and their primary carers have a right of residence by virtue of Article 12 of EEC Regulation 1612/68 and are thereby entitled to access social assistance in the UK. Article 12 provides that 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 education system under the same conditions as the nationals of that State.

The principal issue in both cases was the same, namely whether the appellants had a right of residence deriving directly from Article 12 of Regulation 1612/68, it being accepted by all parties that they could not derive such a right from EC Directive 2004/38. The UK Government argued that EC Directive 2004/38 exhaustively defines the conditions governing the right of residence for EU nationals and their family members and that by implication the ECJ’s judgment in Baumbast had been effectively superseded. It was further argued that if the Article 12 right survived the introduction of Directive 2004/38, it was conditional on the beneficiary being ‘self-sufficient’. It is noteworthy that the Government’s interpretation was implicitly supported by the Court of Appeal in the case of Ibrahim. The Court expressed scepticism about the appellant’s rights under Article 12 of Regulation 1612/68 and Baumbast given her husband’s brief period of residence as a worker in the UK and the fact that she had never been self-sufficient. The Court’s reference for a ruling by the ECJ was, therefore, made through gritted teeth.

The ECJ dismisses the UK’s arguments in both judgements, holding that a national of a Member State who was employed in the UK can claim a right of residence as the primary carer of a child in education solely on the basis of Article 12 of Regulation 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38. Paragraphs 53 and 54 of Teixeira state that Article 12 must be applied independently of other rights of residence in EU law and paragraph 58 notes that this interpretation is confirmed by the travaux preparatoires to Directive 2004/38 which show that the Directive was designed to be consistent with the judgment in Baumbast. The Teixiera judgment also stresses in paragraph 60, with reference to the case of Metock and Others Case C-127/08, that the aim of the Directive was not just to simplify the rights of free movement and residence, but also to strengthen them. The UK’s approach would, contrary to this, result in stricter conditions than applied before the Directive came into force.

The judgments also unequivocally reject the UK Government’s submission that a right of residence under Article 12 is dependent on the beneficiaries having sufficient resources for themselves and their children. The ECJ again refers to its judgment in Baumbast and notes that the right of residence accorded to the children and their mother in that case was not based on their self-sufficiency but on the purpose of Regulation 1612/68 to promote and facilitate freedom of movement for workers which necessitated the best possible conditions for the integration of the worker’s family in the host State. The ECJ therefore holds that the right of residence deriving from Article 12 ‘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 cover there.’

The Court also clarified in Teixeira that there was no requirement that the child first entered education when the EU citizen was a worker in order to have a right to reside under Article 12 of Regulation 1612/68. There was nothing in the wording of the Article that required that, and it was ‘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’ (paragraph 74). In terms of the duration of the Article 12 right of residence, the Court notes that in terms of access to and the completion of education, the right extends to higher education. Consequently the date a child completed her/his education may be after reaching the age of majority and also after ceasing to be dependent on a parent. In terms of the primary carer the court held (at paragraph 86) that her/his right to reside may extend beyond the age of majority of the child ‘if the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education.’

Finally, it should be noted that there is no requirement that the primary carer is, or was, a worker, or continues to reside with the parent who was the worker (see Ibrahim). This means that a woman (of whatever nationality) who has separated from her partner who is an EEA national who has worked in the UK, can establish a right to reside on the basis of being a lone parent of their child in education.

The judgements mean that all those claimants covered by the Baumbast principle are entitled to social assistance, including new claimants, and those whose appeals are yet to be determined or have been stayed pending the ECJ judgments. In practical terms, the claimant will need to establish the following:

The position of A8 and A2 nationals who have completed 12 months registered or authorised employment should be the same as all other EEA nationals. The position of A8 and A2 nationals who have worked for less than a year, however, is more problematic.

The DWP may seek to argue that they have not acquired the status of ‘worker’ and are not, therefore, covered by Article 12 of 1612/68. CPAG believes that it is strongly arguable that this is wrong. There is nothing in the ECJ decisions to suggest that the Article 12 right of residence does not apply to A8 or A2 nationals if all the other criteria apply. The Accession Treaties permit Member States to derogate from Articles 1– 6 of Regulation 1612/68 during the accession period, but there are no derogations authorised in respect of Article 12. Further, it is arguable that that as a matter of Community and domestic law, A8 and A2 nationals who have worked for any period of time in compliance with the UK’s registration and authorisation schemes have attained worker status for the purposes of Article 45 (formerly 39) of the EC Treaty and can derive a right of residence under Article 12 of 1612/68.

It is unclear whether five years’ continuous residence on the basis of Article 12 could result in a permanent right of residence under Directive 2003/38. The issue is likely to arise where either the primary carer and/or the children have resided in the UK for in excess of five years but the children have completed their education. In this context, the comments of the Advocate General in Teixeira (as reported in Bulletin 213) are both instructive and positive.

Article 12 of 1612/68 only applies to workers, as opposed to the self-employed, or those providing services. There isn’t, and has never been, any equivalent provision relating to the self-employed (EC Directive 73/148, the former provision covering the rights of free movement and residence for the self-employed was drafted in different terms). It is, therefore, unclear whether the Baumbast principle could apply to the self-employed, as the caselaw thus far has only been concerned with workers.

It is, however, arguable that the self-employed have the same rights of freedom of movement and residence as migrant workers – see, for example, the ECJ’s judgment in Ramrath Case C-106/91. Moreover, in Teixeira and Ibrahim, the ECJ refers to the retention of the right of residence provided for in Article 12(3) of Directive 2004/38, which states that a Union citizen’s departure or death shall not entail the loss of the right of residence of her/his children, or of the parent who has actual custody of the children, if the children are enrolled in education. This is a confirmation of a particular aspect of the Baumbast principle and applies to both workers and the self-employed. The issue of the residence rights of claimants who have been self-employed is currently being considered by the Upper Tribunal in CIS/2357/2009.

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