Right to reside: some positive case law

 

Graham Tegg reports on some positive developments from the European Court of Justice (ECJ).

The 'right to reside' test for means-tested benefits and child benefit has now been in place for more than five years. So far the test has robustly withstood a number of challenges in the UK courts based on Community Law arguments. The position may be about to change, however, as several cases referred by the UK courts to the European Court of Justice near decision.

On 20th October 2009, the Advocate Generals in the cases of Teixeira (Case C-480/08) and Ibrahim (case C-310/08) published their opinions in two homelessness eligibility cases referred to the ECJ by the UK Court of Appeal. The Opinions make for interesting reading as they reveal an approach to free movement and residence which contrasts markedly to the approach adopted by the UK tribunals and courts.

The issue in both cases was whether or not Union citizens or their family members can claim a right of residence in the UK on the basis of being the primary carer of a child in education with a parent who has worked in the UK (the so-called 'Baumbast principle', after the earlier ECJ case Baumbast (case C-413/99). The claimed right of residence derives from Article 12 of Regulation (EEC) No 1612/68.

Both Ms Teixeira (a Portuguese national) and Ms Ibrahim (a third country national) had sought homelessness assistance. The eligibility rules for homelessness contain a right to reside test. At the time of their applications to the boroughs of Lambeth and Harrow respectively, the appellants were 'economically inactive' and not self sufficient. Ms Teixeira had worked in the UK but was no longer in the labour market and had not retained the status of 'worker'. Ms Ibrahim had come to the UK to join her husband, a Danish national who was working in the UK. The husband had ceased working and at the time of the application had left the UK. Both were found to be ineligible for homeless assistance on the basis that they did not have a right to reside in the UK.

The local authorities and the UK government took the view that the implementation of EC Directive 2004/38 had overtaken and effectively displaced the ECJ's decision in Baumbast. They further argued that, in any case, in order to rely on the Baumbast principle, it was necessary for the person to have sufficient resources so as not to become a burden on social assistance.

In Teixeira, Advocate General Kokott proposes that the full Court should respond to the reference from the Court of Appeal as follows:

In Ibrahim, Advocate General Mazak reached a similar conclusion, namely that:

An Opinion of the Advocate General does not ultimately determine the case and therefore is not binding on the full Court. But nevertheless the Opinion is influential as it provides an impartial and independent view of the case. In practice Opinions are often followed by the Court. It is also worth noting that as a matter of domestic law by s3(2) of the European Communities Act 1972, 'Judicial notice shall be taken of …any decision of, or expression of opinion by the European Court or any court attached thereto . . . '

The influence of Advocate Generals' opinions in domestic law can be demonstrated by the Court of Appeal's judgment in Abdirahman and Ullusow v Secretary of State for Work and Pensions [2007] EWCA Civ 657 which remain leading right to reside judgments. In limiting the impact of the ECJ's judgment in Trojani (Case C-456/02), which found Mr Trojani could claim social assistance, the Court of Appeal quotes positively from the 'illuminating Opinion of the Advocate General in that case'. The quote from the Opinion that 'the basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State' has since often been repeated.

Prior to the full Court issuing its final judgment, it is therefore strongly arguable that at the very least it will no longer be possible for the DWP to refuse claims where the claimant is relying on the Baumbast principle. Further, until the ECJ reaches its judgment, it can be argued that regulation 2 of the Social Security (Payments on Account etc.) Regulations 1988 should apply allowing an interim payment should be made. This would be on the basis that it appears to the Secretary of State that the claimant may be entitled to benefit and a claim has been made but it is 'impracticable for it, or an application or appeal to which relates to it, to be determined'.

In Teixeira, the Advocate General also makes some interesting 'final remarks' relevant to the issue of permanent rights of residence on the basis of 5 years legal residence. It is noted that Ms Teixeira had resided continuously in UK for considerably more than five years and that in addition to her periods of work, there was nothing to suggest that her subsequent residence had been illegal. It is suggested in the Opinion that residence that is lawful as a matter of domestic law is itself sufficient to give rise to the permanent right of residence.

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