West Law Report

HARROW LBC v IBRAHIM & ANR

Posted in EU Immigration and Citizen free movement, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 8:21 PM BST 30/04/2008
Court of Appeal (Civil Division)

Rix, Jacob LJJ, Forbes J

April 21, 2008

Children – EC law – Homelessness – Local authorities’ powers and duties – Right to education – Rights of entry and residence – Workers – Retention of right of residence by family members following death or departure of European Union citizen – Entitlement to housing assistance – Self-sufficiency – Primary carer – Immigration (European Economic Area) Regulations 2006 – Art. 12 Regulation 1612/68 on Workers Freedom of Movement – Directive 2004/38 on Free Movement for EU Citizens and their Families 2004 – Art. 10 Regulation 1612/68 on Workers Freedom of Movement – Art. 7 Directive 2004/38 on Free Movement for EU Citizens and their Families 2004 – Art. 12 Directive 2004/38 on Free Movement for EU Citizens and their Families 2004

FACTS

The appellant local authority appealed against a decision that the respondent (S) and her school age children had the right to reside in the United Kingdom and were accordingly eligible for housing assistance. S was a Somali national. She was married to but separated from a Danish citizen (D) who had worked in the UK but had since left the UK and returned and had ceased to be a qualified person under the Immigration (European Economic Area) Regulations 2006 with a right to reside in the UK. S had come to the UK with the permission of the immigration authorities in order to join D.

They had four children who were Danish citizens. The three older children came to the UK with S and the fourth child had been born in the UK. The two eldest children had started in state education shortly after their arrival in the UK and remained in such education. S was not self-sufficient and relied on means-tested benefits. She had applied to the local authority for homelessness assistance for herself and her children. The local authority found S ineligible for housing assistance since neither she nor D were exercising a Community law right to reside in the UK and she was therefore liable to immigration control.

S submitted that she was entitled to remain in the UK by reason of Regulation 1612/68 art. 12 taken together with the decision of the European Court of Justice in Baumbast v Secretary of State for the Home Department (C413/99) [2002] ECR I-7091 ECJ. The local authority argued that S had to bring herself within the subsequent codification of the right of residence in Directive 2004/38 and the corresponding provisions of the 2006 Regulations and that she could not do so because D had ceased to be a worker before his departure from the UK and had failed to obtain a new right of residence on his return, and that Baumbast was distinguishable because the family in that case was self-sufficient.

ISSUE

Whether S and her school-age children had the right to reside in the United Kingdom and were accordingly eligible for housing assistance.

HELD (Questions referred to ECJ)

The issues raised by the appeal were not acte clair and needed to be referred to the ECJ. The court would be inclined to read Baumbast as saying that the implied right of residence in order to vindicate the child’s right of access to education arose out of art. 10 and art. 12 of the 1968 Regulation.

However art.10 had been repealed and replaced by art. 7 of the 2004 Directive. It was not obvious that the full rationale of Baumbast survived, and it was arguable that its modern rationale had to take its source from a combination of art.12 of the 1968 Regulation taken together with the 2004 Directive. That was supported by the references in the 2004 Directive’s preamble to that Directive as a codification, following review, of that area of Community law, and to the need for a single legislative act. Article 12 of the 2004 Directive was the express source of the retention of the right of residence by family members in the event of death or departure of the European Union citizen. The case of departure was problematical and the notion of departure appeared to be in essence new to the 2004 Directive. The court was uncertain as to the significance of the concept of departure.

Also the first two questions in Baumbast had been answered by the ECJ without reference to the principle of self-sufficiency but the answers were given against the background of the fact that the Baumbast family were self-sufficient. The court was sceptical as to whether art.12 of the 1968 Regulation and Baumbast in the light of the 2004 Directive did give the children and primary carer of a worker who had stopped working a right to reside in the host Member State to complete an education which had relatively recently begun and to do so despite lack of self-sufficiency, and however briefly the worker had resided as a worker in the host Member State. The court would refer to the ECJ questions intended to determine whether S and her children enjoyed a right of residence only if they complied with the conditions set out in the 2004 Directive or whether they enjoyed a right to reside derived from art. 12 of the 1968 Regulation and as to the significance of the question of self-sufficiency.

Kelvin Rutledge and Sian Davies (instructed by in-house solicitor) for the appellant. Nicola Rogers (instructed by Shelter Legal Services) for the first respondent. Clive Lewis QC and Elisabeth Laing QC (instructed by Treasury Solicitor) for the second respondent.

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