Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
Permission is given to the claimant to appeal against the decision of the First-tier Tribunal made on 4 August 2009 at Fox Court under reference 242/09/01429)
As that decision involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: at the time of her claim for a jobseeker's allowance (made on 24 November 2008 and refused on 16 December 2008), the claimant had a right to reside in the United Kingdom. Her entitlement to a jobseeker's allowance is to be determined on that basis.
Reasons for Decision
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.
6. In order to render the child’s right to education effective, the Court of Justice of the European Union has decided that the child’s primary carer must have a right to reside. The circumstances in which the carer’s right arises has been developed through a series of cases: Baumbast v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091; Ibrahim v Secretary of State for the Home Department (Case C-310/08) [2010] I-1065; Teixeira v London Borough of Haringey (Case C-480/08) [2010] ECR I-1107; and Secretary of State for Work and Pensions v Czop and Punakova (Cases C-147 and 148/11).
7. This case adds a further layer to those authorities.
9. In Secretary of State for Work and Pensions v JS [2010] UKUT 347 (AAC), I decided that persons who were registered were workers for the purpose of Article 12 (now Article 10) while working and before the 12 months period expired.
Where a worker begins working for an employer on or after 1st May 2004 that employer is an authorised employer in relation to the worker during the one month period beginning on the date on which the work begins.
The Secretary of State’s representative has conceded that by virtue of that paragraph the claimant had worker status for the first month of her employment, during which time her children were in general education. Accordingly, she has a right to reside under Article 10.
Signed on original |
Edward Jacobs |