Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 168/08/01520, made on 12 January 2009 at Bromley, did not involve the making of an error on a point of law.

Reasons for Decision

A.          Introduction

1.           This is an appeal, brought by the Secretary of State with the permission of the First-tier Tribunal, against a decision by that tribunal that the claimant had a right to reside in the United Kingdom. I held an oral hearing of the appeal on 16 September 2010. The Secretary of State was represented by Ms Rhee of counsel. The claimant was represented by Mr Tegg of the Child Poverty Action Group. I am grateful to them both for their arguments.

B.          The issue

2.           The claimant is from an A8 country. She was in registered work while her child was in education, but she never completed 12 months registered work. Does she later have a right to reside as her child’s principal carer? That is the question. The answer depends on the interaction of the Accession (Immigration and Worker Registration) Regulations 2004 (SI No 1219) and the Baumbast line of authorities.

C.          History and background

3.           The claimant is Polish. She moved to live in the United Kingdom in October 2004. Her two children were born in 1992 and 1998. They joined her in July 2006 and entered education in September 2006. She worked full-time from 10 October 2005 to 7 August 2007, but her work was only registered from September 2006. She claimed income support on 5 September 2007, but the Secretary of State refused the claim on the ground that she was a person from abroad. The effect of that classification was that her applicable amount was nil and she was not entitled to income support. The tribunal’s first decision was set aside. At the rehearing, her appeal succeeded on the ground that her child had been in school when she was in registered work.

D.          Poland’s accession to the EU

4.           Poland acceded to the EU on 1 May 2004. Its accession was subject to derogations in Annex V to the Treaty of Succession. The derogations apply only to Article 39 EC Treaty (now Article 45) and Articles 1 to 6 of Regulation 1612/68.

5.           Article 39/45 confers freedom of movement for workers. This case concerns the claimant’s right to reside and freedom of movement. Those are fundamental concepts of the EU and, as such, must be given a broad interpretation. Annex V allows derogation in respect of freedom of movement. As such, it must be interpreted narrowly.

6.           Article 1 to 6 of Regulation 1612/68 form Title I of Part I of the Regulation. The Part is headed Employment and Workers’ Families and the Title is headed Eligibility for employment. Article 1 deals with the right to take up and pursue employment. Article 2 deals with making contracts of employment. Article 3 deals with equal treatment of nationalities in jobseeking. Article 4 deals with quotas. Article 5 deals with assistance in finding work. And Article 6 deals with discrimination in recruitment and engagement.

7.           Article 12 of Regulation 1612/68 confers a right to education on the children of a worker:

‘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.’

E.          The domestic response to the derogation

8.           The derogations were not compulsory. They were implemented into domestic law by the authority of the European Union (Accession) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004.

9.           The effect of those Regulations is that a person only attains the full advantages of worker status after working in registered employment for more than 12 months. However, regulation 5(2) provides:

‘… an accession State worker requiring registration shall be treated as a worker for the purpose of [the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006] only during a period in which he is working in the United Kingdom for an authorised employer.’

‘Worker’ for the purposes of regulation 6(1) of the 2006 Regulations is defined in regulation 4(1)(a) as meaning ‘a worker within the meaning of Article 39 of the Treaty establishing the European Community’.

10.        The status conferred by regulation 5(2) may be temporary and inchoate as regards the full advantages that it confers. However, a person who is in registered work is a worker for that moment. That is what regulation 5(2) provides, as shown by the chain from that provision to regulation 6 and from there to the definition of worker in regulation 4.

F.           The right to reside for primary carers

11.        The European Court of Justice has decided that the primary carer of a child with a right to education has a right to reside in order to make that child’s right effective.

12.        The line of authority began with cases in which the worker and the primary carer were different. The leading authority is Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091. It has been confirmed by the recent decision of that Court in London Borough of Harrow v Ibrahim (Case C-310/08). The line has now been extended to cases in which the worker and the primary carer are the same person by the Court’s decision in Teixeira v London Borough of Lambeth (Case C-480/08). The combined effect of those decisions is this. They decide that an EU citizen who is the primary carer of a child has a right to reside if the child was in education while she was a worker. She does not need to be self-sufficient or have comprehensive sickness insurance in the United Kingdom.

13.        The operation of those cases depends on the circumstances at two points in time. At one point, a child is in education when a parent is a worker; I call this the first requirement. It operates to crystallise the child’s right to education under Article 12. It confers no right on the person who is the worker. At the other point, the child is being looked after by the primary carer who does not have a right to reside; I call this the second requirement. This right does not depend on the person having been a worker. It is a right that is purely protective of the child’s right to education.

G.         Why the claimant has a right to reside

14.        The claimant undertook full-time work. She did not register immediately, but she had registered by the time her children were in education in this country. She never acquired the full worker status. She did, though, acquire temporary and conditional worker status under regulation 5(2). And when she had that status for the time being, her children were in education. Focussing on that moment, she satisfied the first Baumbast requirement. Later, she was no longer working but she was the primary carer of her children who were still in education. At this time, she made her claim for income support. Focussing on that moment, she satisfied the second Baumbast requirement. She claimed her right to reside in support of her children’s right to education. Her claim at that moment did not depend on having acquired the full advantages of worker status. It was entirely independent and based on her status as primary carer.

H.         The Secretary of State’s argument

15.        Ms Rhee’s case was set out in paragraph 6.2 of her skeleton argument. In essence, she argued that the child’s right under Article 12 only arises when the parent has completed 12 months’ work. Until then, the parent’s rights are qualified. The key passage reads: ‘the fact alone that the dependent child may have availed himself of his right to access education under Article 12 cannot serve to transform what may have been only a qualified right on the part of his parent to rely on Article 12 … into a qualified right to rely on Article 12.’ That passage shows the flaws in the argument. The Article 12 right is conferred on the child, not on the parent. The parent’s status as a worker serves only to trigger the child’s right. The parent does not take advantage of the right as worker but only at most as primary carer. And the Baumbast right does not depend on the parent having any continuing status as worker.

16.        If I understood Ms Rhee’s oral presentation correctly, she argued that Article 12 was covered by the derogation in Poland’s Treaty of Accession. I reject that argument. It is a right for the child, not the worker. It is not linked to any of the provisions in Articles 1 to 6, either on their wording or on their substance. It is a right with continuing effect independent of the future status of the person whose work gave rise to the child’s right.

17.        Even if there were an argument that Articles 1 to 6 formed (as Ms Rhee put it) a gateway to Article 12, I would still reject her argument. The derogation must be interpreted narrowly and the omission of any reference to Article 12 in the Annex is sufficient to prevent it being covered.

18.        The simple answer to the Secretary of State’s case is this. The Treaty of Accession allowed member States to derogate from a person’s rights as a worker. The United Kingdom has implemented that derogation partially. It could have deprived persons from the A8 countries of any rights until they had completed 12 months’ work. It did not do so and the claimant is entitled to the benefit of the limited rights that it conferred on her.

I.            Disposal

19.        I have decided not to refer a question to the European Court of Justice for two reasons. First, the law is clear to me. Second, the issue on which this case turns is one of domestic law (the scope of regulation 5(2)) and not of European law.

20.        As the tribunal came to the correct decision in law, I dismiss the appeal.