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 SC950/11/00916, made on 1 June 2012 at Hull, did not involve the making of an error on a point of law.

Reasons for Decision

1.         This case raises an issue that has not been decided in domestic law. It comes by way of appeal with permission granted by the First-tier Tribunal. The Secretary of State’s representative has responded to the appeal, but the claimant’s representative has not replied on her behalf. The case has been stayed to await decisions in other cases.

2.         The claimant and her current partner are both Latvian and, therefore, EU citizens. They are not married or in any form of legally recognised relationship. They came to this country in 2007. Between them, they have three children. The two elder children were by a former partner who does not figure in these proceedings. The youngest is by her current partner. I need only refer to one child, whom I will refer to as S. She is not the child of the claimant’s current partner.

3.         The claimant made a claim for income support on 9 September 2010, which the Secretary of State refused on 7 December 2010. This was confirmed on reconsideration on 4 March 2011 and 28 April 2011. Technically, the Secretary of State decided that the claimant was a person from abroad who had an applicable amount of nil, which prevented any entitlement to income support. Put more simply, the claimant was not entitled to an award because she did not have a right to reside in the United Kingdom. On appeal, the First-tier Tribunal confirmed the Secretary of State’s decision.

4.         At the time of the claim, the position was this. The claimant had never worked in this country. Her partner had been a worker, but was no longer working and had received employment and support allowance, which had come to an end. S had been in education in this country since 2008.

5.         There is ample authority from the Court of Justice of the European Union that a primary carer of a child who is in education has a right to reside derivative from that of the child provided that the child is the child of a worker who was in the United Kingdom at some time. I need only refer to: Baumbast v R (Case C-413/99); Ibrahim v Harrow London Borough Council (Case C-310/08); Teixeira v London Borough of Lambeth (Case C-480/08); and Czop and Punakova v Secretary of State for Work and Pensions (Cases C-147 and 148/11).

6.         This case differs is that neither of S’s parents has ever been a worker in this country. The claimant’s current partner has been a worker and, although it is not essential, a worker when S was in education. So the question arises whether or not the authorities I have cited apply. The answer is: no. The matter is covered by a decision of the Court of Justice of the European Union that has not been cited to me: ONAFTS v Ahmed (Case C-45/12). I have considered whether to allow the parties time to make submissions on it, but it is so clear and authoritative that there would be no point.

7.         That case came before the Court on a reference from a Belgian Court, which asked questions about Regulation 1408/71. The claimant was not an EU citizen. Her partner was French; they were not married or in any form of legally recognised relationship. The case concerned a daughter of the claimant, who was not the daughter of her partner. Having dealt with the questions referred and Regulation 1408/71, the Court went on to deal with the position under Article 12 of Regulation 1612/68. This confers the right of the child of a worker or former worker to be admitted to the State’s general education system. It is the basis on which the primary carer’s derived right to reside is based. This is what the Court said:

44     In that regard, it must be observed that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the migrant worker’s family in the society of the host Member State (see Case C‑308/89 di Leo [1990] ECR I‑4185, paragraph 13, and Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 50).

45     For such integration to come about, a child of a migrant worker must have the possibility of going to school and continuing his or her education in the host Member State, as is expressly provided in Article 12 of Regulation No 1612/68, in order to be able to complete that education successfully (Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Baumbast and R, paragraph 51).

46     According to case-law, that right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (see Case C-480/08 Teixeira [2010] ECR I-1107, paragraphs 36 and 53).

47     According to the Commission, both the daughter and the child of both parents, and, consequently, the mother for as long as she is the primary carer of the children, have such a right of residence on the basis of Article 12 of Regulation No 1612/68.

48     In circumstances such as those of the main proceedings, that interpretation cannot however be accepted as concerns the daughter.

49     First, it is common ground that the daughter is not the child of the national of another Member State. In relation to that person, she therefore does not have the status of a child of a national of a Member State who is or has been employed in the territory of another Member State, within the meaning of Article 12 of Regulation No 1612/68.

50     Secondly, it is admittedly true, as the Commission contends, that the right of ‘his spouse and their descendants who are under the age of 21 years or are dependants’ to install themselves with the migrant worker, pursuant to Article 10(1)(a) of Regulation No 1612/68, must be interpreted as meaning that the benefit of that right extends both to the descendants of that worker and to those of his spouse (Baumbast and R, paragraph 57).

51     However, suffice it to state that, in circumstances such as those of the main proceedings, the mother is not, and has never been, the spouse of the national of another Member State, and a mere cohabiting partner cannot be considered to be a ‘spouse’ for the purposes of Article 10(1)(a) of Regulation No 1612/68 (see, to that effect, Case 59/85 Reed [1986] ECR 1283, paragraph 16). Therefore, the daughter cannot be regarded as the child of the spouse of a migrant worker or former migrant worker.

8.         On the basis of that reasoning, the Secretary of State was right to decide that the claimant did not have a right to reside. There is one difference in that the claimant, her current partner and her former partner are all EU citizens. But that cannot affect the Court’s reasoning. The key point is that S can only benefit from Article 12 if she is the child of someone who is or has been a worker. The only person who has been a worker is the claimant’s partner and she is not his child as he has no formal legal relationship with her mother.

9.         For completeness, I mention the position under Directive 2004/38. The claimant’s partner is not a family member as defined by Article 2, as he is not her spouse or in a registered partnership with her. He may be a beneficiary under Article 3 on the basis that he is in durable relationship with her and I am prepared to assume that that is so. He is, therefore, in the language of the Immigration (European Economic Area) Regulations 2006 an extended family member. As such, he is entitled to be issued with residence documentation. But none of that makes S his child for the purposes of the derivative right of a primary carer.