England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
HH JUDGE WELCHMAN
Case no. 7LB03038

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/10/2008

Stanley Burnton LJ :

Introduction

1. This appeal is another case in which the right of residence in this country of an EEA national who is not a worker but who has a child who is in education here is in issue.

History

2. Mrs Teixeira is a citizen of Portugal, a country within the EEA. She applied to Lambeth for accommodation under Part 7 of the Housing Act 1996 on the basis that she was homeless. She was interviewed on 11 April 2006 and the homelessness assessment officer notified his decision to her by letter of the same date. The first question to be considered by Lambeth was whether she was eligible for assistance under Part 7 of the 1996 Act. It is common ground that under the applicable UK legislation that depended on whether she was subject to immigration control; and in turn that depended on whether she had a right to reside here under European Union or UK legislation.
3. Mrs Teixeira claimed to be entitled to reside in this country on two grounds. The first was that she was or had been a worker, and was therefore entitled to reside here by virtue of the Immigration (European Economic Area) Regulations 2006, made to implement this country's obligations under Directive 2004/38 of the European Parliament and Council.
4. The second ground was based on article 12 of Regulation (EEC) 1612/68 (Article 12), which is as follows:

"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 general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions."

5. Mrs Teixeira contended that her daughter, Patricia, and her son were nationals of a Member State, namely Portugal; they were residing in and were in full-time education in this country; her daughter, Patricia, lived with Mrs Teixeira, who was her primary carer; and Mrs Teixeira was entitled to reside in this country in order to make realistic rather than illusory her children's right to be admitted to education here under Article 12. In this connection, her solicitors relied on the decision of the European Court of Justice in Baumbast v Secretary of State for the Home Department, Case C-413/99, [2002] ECR I-07091. It is now accepted on behalf of Mrs Teixeira that Patricia is the only child who is living with her and of whom she is the primary carer.
6. Lambeth's homeless assessment officer rejected the contentions made by and on behalf of Mrs Teixeira and decided that she was subject to immigration control and therefore ineligible for housing under Part 7 of the Housing Act.
7. As she was entitled to do, Mrs Teixeira requested a review of the Council's decision pursuant to section 202 of the 1996 Act. Having considered the representations made on her behalf, the reviewing officer upheld the original decision. It is unnecessary to refer to the first ground on which Mrs Teixeira sought to rely, since she now accepts that it is unsustainable. On the second ground, as I read her decision, the reviewing officer held that Article 12 had been modified by the 2004 Directive, and that since she was not self-supporting, but dependent on public funds, Mrs Teixeira could not derive a right of residence from it.
8. Mrs Teixeira appealed against that decision to the County Court pursuant to section 204 of the 1996 Act. Her appeal was restricted to her second ground, i.e., Article 12. The appeal was heard by HH J Welchman. In his judgment given on 16 November 2007 he held that Lambeth had correctly decided that Article 12 did not assist Mrs Teixeira because it was and is a requirement that she should not be dependent on public resources, and she was admittedly so dependent. He dismissed her appeal.
9. After the judge gave his decision, the Court of Appeal, differently constituted, gave judgment in LB of Harrow v Ibrahim [2008] EWCA Civ 386 (ECJ case reference C-310/08). The case concerned a parent, a mother, who was not an EEA national, but whose children were Danish (i.e., EEA) nationals and in primary education here. The family was dependent on public resources. As in the present case, the mother relied on Article 12. The Court of Appeal was sceptical as to whether the mother could rely on Article 12 in the circumstances of that case, given the absence of self-sufficiency and the relatively recent entry of the children into education, but considered that whether or not she could rely on Article 12 was not acte claire, and the Court referred questions to the European Court of Justice.

The hearing before the Court of Appeal

10. The application for permission to appeal from the decision of His Honour Judge Welchman came before me on 24 July 2008. I granted permission to appeal: Teixeira v London Borough of Lambeth [2008] EWCA Civ 983. On the hearing of the substantive appeal on 14 August 2008, having heard counsel's submissions, including counsel for Mrs Teixeira's concession that she could not rely on any ground entitling her to reside in this country other than Article 12, we stated that we had concluded that a reference to the European Court of Justice is necessary in this case, as it was in Ibrahim. The court directed counsel to agree if possible a draft order, including a statement of relevant facts for the European Court and a draft of the questions to be referred. We stated that the court would hand down a short judgment in due course.

The order to be made by the Court of Appeal

11. The parties were able to agree the terms of the order to be made by this court, including the Schedule setting out the relevant facts to be placed before the European Court of Justice and the questions to be referred, with minor exceptions.
12. Having considered the parties' written submissions on the outstanding issues, we have decided that they can and should be determined without a further hearing. We have restricted the statement of facts to those we consider to be relevant and necessary for the European Court to address and to answer the questions referred to it.
13. The order to be made by this court will be in the form annexed to this judgment. As appears from the order, the proceedings before this court will be stayed pending the ruling of the European Court of Justice on the questions referred to it.
ANNEX: THE ORDER TO BE MADE BY THIS COURT

IN THE COURT OF APPEAL B5/2007/2769

CIVIL APPEALS DIVISION

IN THE MATTER OF

AN APPEAL FROM LAMBETH COUNTY COURT (Case no 7LB03038 (HHJ Welchman))

BETWEEN:

MARIA TEIXEIRA

Appellant

and LONDON BOROUGH OF LAMBETH THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

1^st and 2^nd Respondents

ORDER

It is ordered that:

1. The questions set out in Annex 1 of the Schedule to this order be referred to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 234 of the EC Treaty.

2. The proceedings be stayed until the European Court has given a preliminary ruling on the questions referred to it or until further order.

3. Costs reserved.

SCHEDULE

THE PARTIES

1. The Appellant, Mrs Teixeira, is a national of Portugal. The Appellant applied to the First Respondent, the London Borough of Lambeth, for housing assistance under the provisions of Part VII of the Housing Act 1996 ("the 1996 Act").

2. The London Borough of Lambeth is the local housing authority for the area of London where the Appellant was resident when she applied for housing assistance. The Second Respondent is the Secretary of State for the Home Department.

FACTS

3. The Appellant is a national of Portugal and was born on 7 March 1971. She came to England in 1989 and worked as a cleaner between 1989 and 1991. She came with her husband, who is also a Portuguese national.

4. The Appellant's daughter, Patricia, was born in the United Kingdom on 2 June 1991. Patricia entered education in the United Kingdom at a time when the Appellant was not a worker. The Appellant and her husband subsequently divorced. He continues to live in England. On 13 June 2006, a court ordered that Patricia should reside with her father but that Patricia could have as much contact with her mother as she wished. In November 2006, Patricia enrolled on a child care course at the Vauxhall Learning Centre in Lambeth. In March 2007, Patricia went to stay with her mother.

5. The Appellant had intermittent periods of employment in the United Kingdom after 1991. The Appellant last worked in early 2005.

6. On 11 April 2007, the Appellant applied to the London Borough of Lambeth for housing assistance. The London Borough of Lambeth found that the Appellant was not a person eligible for housing assistance.

7. The Appellant accepts that:

(1) she is not a worker and is not self-sufficient and does not have a right to reside under Article 7.1 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 ("the Directive");

(2) she has not retained status as a worker as she does not satisfy the requirements of Article 7.3 of the Directive;

(3) she has no right of permanent residence under Article 16 of the Directive.

8. In the legal proceedings, the Appellant contended that the only basis upon which she was seeking to claim a right of residence in the United Kingdom was by virtue of the fact that:

(1) her daughter Patricia was in education and had a right to reside derived from Article 12 of Regulation (EEC) No. 1612/68, as interpreted by the Court of Justice in case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091;

(2) the Appellant was, from March 2007, the primary carer for Patricia.

THE LAW

The Relevant Provisions of EU Law

9. Article 6 of the Directive provides that European Union citizens have a right of residence on the territory of another Member State for a period of up to three months.

10. Article 7.1 of the Directive provides that Union citizens have a right of residence on the territory of another Member State if they:

(1) are workers or self-employed;

(2) have sufficient resources and comprehensive sickness insurance cover in the host Member State;

(3) are enrolled at an educational establishment for the principal purpose of following a course of study, and have comprehensive sickness insurance and sufficient resources; or

(4) are family members accompanying or joining a Union citizen who satisfies one of the above conditions.

11. Article 14.2 of the Directive provides that Union citizens and their family members retain the right to reside provided for in Article 7, 12 and 13 as long as they meet the conditions set out in those articles.

12. Article 16 of the Directive provides that Union citizens who have resided legally for a continuous period of 5 years in the host Member State have the right of permanent residence.

13. Article 24 of the Directive provides that Union citizens residing on the basis of the Directive in the territory of a Member State shall enjoy equal treatment with nationals of that state within the scope of the Treaty.

14. Article 12 of Regulation (EEC) No 1612/68 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 general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions."

The Domestic Law Provisions

15. The provisions of the Directive have been implemented in the United Kingdom by the Immigration (European Economic Area) Regulations 2006.

16. So far as housing assistance is concerned, the 1996 Act provides for housing assistance for eligible persons who are homeless and who meet certain conditions.

17. The domestic provisions are complex. In essence, section 185 of the 1996 Act provides that a person is not eligible for assistance if "he is a person from abroad who is ineligible for assistance." The detail of the scheme is set out in the Allocation of Housing and Homeless (Eligibility) (England) Regulations 2006 SI No. 1294 ("the Eligibility Regulations"). Regulation 5 details the classes of persons subject to immigration control who are eligible for housing assistance. Regulation 6 describes other categories of persons from abroad (i.e. those who are not subject to immigration control) but who are ineligible for housing assistance.

18. In summary, to be eligible pursuant to Regulation 6 of the Eligibility Regulations, an applicant for housing must have both a right to reside and be habitually resident in the UK. British citizens, Commonwealth citizens with the right of abode in the UK and EU citizens exercising a Community law right to enter and remain in the United Kingdom, all have the right to reside in the UK. EU citizens are ineligible if their only right to reside is as a jobseeker or the family member of a job seeker, or is an initial right to reside in the UK for a period not exceeding three months.

19. The following EU citizens are exempt from the habitual residence test:

(1) a worker,

(2) a self-employed person;

(3) a family member of a worker or a self-employed person;

(4) a person with a right to reside permanently in the United Kingdom

THE SUBMISSIONS OF THE PARTIES

The case for the Appellant

20. At the hearing in the Court of Appeal, the Appellant expressly accepted that she cannot rely on the retention of worker status on any basis under Article 7.3 of the Directive and does not have a permanent right of residence under Article 16 of the Directive.

21. For the Appellant, it is submitted that:

(a) the Appellant's child, Patricia, has an independent right of residence in the UK under Article 12 of Regulation (EEC) 1612/68. This arises as she is the child of an EEA national, the Appellant, who was a worker in the UK. She lived in the UK while the Appellant was working in the UK. She is in education in the UK at present. The important point is that the child now enjoys a free-standing right of residence that has accrued to her to enable her to complete her education in the UK, no other right of residence being available to facilitate the completion of education.

(b) the Appellant, as the primary carer of Patricia, enjoys a right of residence in the UK. Although C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091 concerned scenarios where the primary carer was a spouse (Baumbast) and an ex-spouse (R) of a worker, whereas here the Appellant herself is the former worker, it is submitted that the ratio of the case nonetheless applies. It is submitted that the ratio and principle of the case is that, where the child of a worker has a right to reside under Article 12 of Regulation (EEC) 1612/68, the primary carer of that child also enjoys a right to reside, where necessary to make the child's right to reside effective. The Appellant's right to reside is required to give efficacy to the child's right to complete her education under Article 12.

(c) Directive 2004/38/EC may consolidate certain rights to reside but it is not exhaustive of rights to reside. Other rights to reside arise on other bases under, for example, Article 18 of the EC Treaty, C-200/02 Chen v Secretary of State for the Home Department [2004] 3 CMLR 1060, and Article 12 of Regulation (EEC) 1612/68.

(d) Article 12 of Regulation (EEC) 1612/68 continues in effect and can continue to found a derivative right to reside for the Appellant, notwithstanding the repeal of Articles 10 and 11 of Regulation (EEC) 1612/68 and their substitution by new provisions in Directive 2004/38/EC.

(e) in any event, the child of the Appellant had installed herself with the Appellant before the repeal of Article 10 of Regulation (EEC) 1612/68 and seeks to rely on Article 12 of the same, which has not been repealed. The right of installation under Article 10 had been exercised before its repeal.

(f) there is no requirement for a child or her primary carer to be self-sufficient in order to derive a right of residence from Article 12 of Regulation (EEC) 1612/68.

22. There are issues in the present appeal that are different to those in London Borough of Harrow v Ibrahim and another [2008] EWCA Civ 386, the case referred to the Court of Justice by the Court of Appeal in July 2008. The present appeal gives rise to a discrete scenario where (i) it is a Union citizen who seeks to rely on Article 12 of Regulation (EEC) 1612/68, (ii) she is both the former worker and the primary carer, and (iii) she did not depart from the UK. These facts give rise to the discrete scenario that did not arise in Ibrahim.

The case for the First Respondent

23. The First Respondent adopts the case for the second respondent set out below, and makes the further additional points.

24. The principles set out in the Baumbast case are inapplicable to the present case because:

(1) the Baumbast family were self-sufficient, owned their own home in the UK and satisfied the requirements of Article 10 (now repealed) of Regulation (EEC) No. 1612/68;

(2) throughout the time that the children attended school, Mr Baumbast had a right to reside in the UK, first as a worker and latterly pursuant to Article 18 of the EU Treaty;

(3) Mrs Baumbast was a non-EEA national and therefore, unlike the appellant, could only have a derivative right to reside in the UK;

(4) Mrs Baumbast's right to reside in the UK as the spouse of an EEA worker, ceased when Mr Baumbast left to work abroad. The appellant ceased to have a right to reside as a worker when she chose to give up working in the UK.

The case for the Second Respondent

25. In summary, the Second Respondent's case is that:

(1) the Directive sets out the conditions governing rights of residence in Member States for citizens of the European Union and for members of their families;

(2) the exercise of any right of residence (even if that right is derived from Article 12 of Regulation (EEC) No. 1612/68) is subject to the individuals concerned meeting the conditions for residence set out in the Directive;

(3) the Appellant, on her own admission, does not satisfy the conditions governing the right to reside in Article 7 or Article 16 of the Directive;

(4) in the circumstances, the London Borough of Lambeth were entitled to conclude that the Appellant did not satisfy the conditions in the Directive, she had no right to reside and therefore was not eligible for housing assistance.

26. Alternatively, if there is any scope for deriving a right to reside from Article 12 of Regulation (EEC) No 1612/68, even if the Appellant has not satisfied the conditions set out in the Directive, then:

(1) any such rights are subject to the Appellant being self–sufficient and the Appellant is not self-sufficient;

(2) any rights the Appellant has as a primary carer would end once the child for whom she is the primary carer attains the age of 18;

(3) the Appellant is a person who was a worker but is not currently working. If a former worker (i.e. some one who came to a Member State to work and who is accompanied or joined by her family) is to enjoy Community law rights, it must be because that person satisfies the conditions in the Directive, i.e. the person is a worker, or has ceased to work but has retained her status as a worker or has a permanent right to reside. A person who was a worker (and, as a worker had rights to be accompanied by a family member) cannot then cease to work and instead rely on the family member's derivative rights to acquire a right to reside;

(4) where (i) the child began education at a time when the Appellant was not a worker, (ii) the Appellant has subsequently had only brief periods in employment and (iii) for much of the time while the child was in education, the Appellant was not in work, then the Appellant should not be entitled to claim an additional right to reside solely by reference to the fact that her child is in education.

27. As for question (3) (see Annex 1), the mother became the primary carer in March 2007, that is after the date by which the Directive was to be implemented.

The Reference

28. The Court of Appeal of England and Wales considers that certain questions arise concerning the interpretation of Council Directive 2004/38 of the European Parliament and the Council of 29 April 2004, and of Regulation (EEC) No. 1612/68. The Court of Appeal considers that it is necessary to resolve those questions of interpretation in order to enable it to give judgment in the present case. The Court of Appeal considers it appropriate to refer those questions to the European Court of Justice for a preliminary ruling.

29. The Court of Appeal respectfully asks that this request for preliminary ruling be joined with the reference recently made by the Court of Appeal of England and Wales in Ibrahim v London Borough of Harrow and the Secretary of State for the Home Department (ECJ case reference C-310/08).

30. The Court of Appeal therefore refers the questions set out at Annex 1 to this Schedule to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 234 EC.

ANNEX I

THE QUESTIONS REFERRED TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

In circumstances where (i) an EU citizen came to the United Kingdom (ii) the EU citizen was for certain periods a worker in the United Kingdom (iii) the EU citizen ceased to be a worker but did not depart from the United Kingdom, (iv) the EU citizen has not retained her status as a worker and has no right to reside under Article 7 and has no right of permanent residence under Article 16 of Directive 2004/38 of the Council and the European Parliament (v) the EU citizen's child entered education at a time when the EU citizen was not a worker but the child remained in education in the United Kingdom during periods when the EU citizen was in work in the United Kingdom, (vi) the EU citizen is the primary carer of her child and (vii) the EU citizen and her child are not self-sufficient:

(1) does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 of the European Parliament and the Council of 29 April 2004?;

OR

(2)(i) does the EU citizen enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must she have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(iii) if so, must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

(iv) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the child commenced education prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, ie after the date by which the Directive was to be implemented?