‘Baumbast’ residence rights: more questions than answers

Issue 218 (October 2010)

Graham Tegg examines unresolved questions relating to residence rights following Ibrahim and Teixiera.

Introduction

Over six months ago the European Court of Justice (ECJ) gave its judgments in the cases Ibrahim C-310/08 and Teixeira C-480/08 (see Bulletin 215). In both, the court unambiguously held that: (a) a child of a European Union (EU) national who has worked in the host member state, and the parent who is the child’s primary carer, have a right of residence in the host member state on the basis of Article 12 of Regulation (EEC) 1612/68, and (b) these rights of residence are not conditional on the child or the parent having sufficient resources and comprehensive sickness cover in the host member state.

As clear as the ECJ’s judgments are, there remain a number of unanswered questions which were not referred to the court:

  • Do the children of the self-employed and their primary carers have an equivalent right of residence?
  • Do the judgments apply to A8 and A2 nationals who have worked for less than 12 months under the worker registration/authorisation scheme?
  • Do both members of a couple looking after a child in education have the Article 12 right of residence?
  • Where a relationship has broken down, do both of the parents nevertheless retain the Article 12 right of residence?

In response to the judgments, the DWP has issued two sets of guidance – DMG 30/10 for DWP benefit decision makers, and HB/CTB A10/2010 for local authorities administering housing and council tax benefit. The substantive content of the two sets of guidance is all but identical.

The guidance confirms that claimants will have a right to reside in the UK under Article 12 of Regulation 1612/68 if, at the date of claim:

  • the claimant is the parent (or step-parent) and primary carer of a child; and
  • the claimant or the child’s other parent is a citizen of another European Economic Area (EEA) state or Switzerland; and
  • that person is working or has worked as an employed person in the UK; and
  • the child of the migrant worker was installed (or born) in the UK, entered general education in the UK while the migrant worker also lived in the UK, and is still in general education in the UK and under the age of 18.

The guidance asserts, however, that there is no equivalent Article 12 right of residence relating to self-employed persons, and that A8 and A2 national migrant workers cannot take advantage of judgments unless or until they have completed 12 months of registered or authorised work. The guidance does not cover the couple scenarios referred to above, but it seems likely that benefit claims in such circumstances would be refused.

CPAG is of the opinion that in all of the above scenarios there are rights of residence and that benefit should be awarded. This will need to be confirmed by caselaw, however, which requires legal challenges to be submitted against benefit refusals.

The rest of this article focuses on the legal issues and arguments relating to self-employment and A8/A2 nationals. Note that their position should be clarified by forthcoming Upper Tribunal decisions on the joined appeals in CIS/0647/2009, CIS/1465/2009 and CIS/2357/2009. CPAG represented two of the respondents at an oral hearing on 16 September. Unfortunately it is unlikely that the decisions will be the end of the matter, as there is a distinct possibility of further appeals to the Court of Appeal or references to the ECJ.

Self-employment

The Secretary State argues that Regulation (EEC) 1612/68, which contains the Article 12 right examined in Baumbast, Ibrahim and Teixeira, only applies to ‘workers’ (or former workers) as defined by Article 39 of the European Community (EC) Treaty, and not the self-employed, whose rights derive from Article 43 (freedom of ‘establishment’).

It is true that there is no explicit provision for the self-employed, which is equivalent to (EEC) 1612/68, that the rights of workers and the self-employed derive from different Articles of the Treaty, and that the above cases only concerned ‘workers’ or former workers. Community law requires a purposive approach, however, and CPAG is of the opinion that, in accordance with EC caselaw, the rights of the employed and the self-employed are the same.

Treaty Article 43 which deals with the right of establishment provides that:

‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished. Such progressive abolition shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies and firms within the mean- ing of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.’

The Secretary of State’s argument that the absence of an equivalent provision to Regulation (EEC) 1612/68 for the self-employed means that they have less rights fails to have any regard to the wider purpose and promotion of the fundamental principles of Community law. It has been long held that the right of free movement and residence for the self-employed constitutes one of fundamental principles of the Community. To hold that the children of the self-employed and their primary carers have lesser rights than those accorded to workers constructs a basic obstacle to freedom of establishment contrary to the basic principles of Community law.

Crucially, the Secretary of State’s position takes no account of the ECJ caselaw on the rights of residence and equal treatment for the self-employed. On numerous occasions the ECJ has held that the residence rights of the self-employed and workers are one and the same. Indeed, CPAG has undertaken an exhaustive examination of the ECJ’s caselaw in this area and has been unable to unearth a single instance where the status of worker or self-employed has resulted in different residence and social rights. In particular, the Court has held that the self-employed are covered by the principle of ‘equal treatment’, as set out in Article 43, despite the absence of secondary legislation equivalent to Article 7(2) of (EEC) 1612/68, which accords migrant workers the same tax and social advantages as national workers.

Two ECJ cases which illustrate the point are 63/86 Commission v Italy (re Housing Aid) and 305/87 Commission v Greece both of which concern access to housing assistance. It is important to note that rights to housing assistance are only specifically given to workers in Article 9 of Regulation (EEC) 1612/68. Despite this, the ECJ held in both cases that the self-employed have an equal right to access housing assistance, deriving directly from the Treaty rights. These two cases are illustrative of a core principle that runs through the jurisprudence of the ECJ in respect of the residence and social rights of the self-employed and workers – that despite differences in secondary legislation, the rights of workers and the self-employed are the same.

Another example can be found in Case C-337/97 Meeusen v Hofdderectie van de Informatie Behher Group. Meeusen is one of the cases cited by the High Court in its judgment in Tilianu v Social Fund Inspectors [2010] EWHC 213 (see Bulletin 215 p14) in support of the proposition that there has always been a key distinction in Community law between the treatment of the employed and the self-employed. CPAG believes that it is, in fact, authority for the exact opposite. In answering the substantive questions put to it, the Court held that:

‘2. The dependent child of a national of one Member State who pursues an activity as an employed person in another Member State while maintaining his residence in the State of which he is a national can rely on Article 7(2) of Regulation No 1612/68 in order to obtain study finance under the same conditions as are applicable to children of nationals of the State of employment, and in particular without any further requirement as to the child’s place of residence; 3. The dependent child of a national of one Member State who pursues an activity as a self-employed person in another Member State while maintaining his residence in the State of which he is a national can obtain study finance under the same conditions as are applicable to children of nationals of the State of establishment, and in particular without any further requirement as to the child’s place of residence.’

In the cases of Watson and Belmann Case C-118/75, Royer, Case C-48/75, Ramrath Case C-106/91 and Roux Case C-363/89, the referring courts had not made it clear whether the person concerned was an employee or self-employed. In all of these cases the ECJ held that it made no difference whether an economic activity was classified as employed or self-employed. In Roux, a case concerning a residence permit, the court noted that:

‘where it is not disputed that the person concerned is carrying on an economic activity, the only point at issue being whether it falls to be classified as employment within the meaning of Article 48 of the Treaty or activity as a self-employed person within the meaning of Article 52 of the Treaty… it should be observed that Articles 48 and 52 of the EEC Treaty afford the same legal protection and that therefore the classification of an economic activity is without significance’.

In Case C-1/05 Jia, the issue was whether a dependent family member of a self-employed EU national must have been dependent in their country of origin and have documentation to prove this. Directive 73/148, which applied to the self-employed contained no such requirement, whereas Directive 68/360, which applied to workers, did. The ECJ was asked whether this meant the self-employed had more rights. The ECJ concluded that the answer was ‘no’, holding that ‘there is nothing to justify the status of dependent relative in the ascending line being assessed differently according to whether the relative is a member of the family of a worker or of a self-employed worker’.

A8 and A2 nationals

The DWP’s assertion that A8 and A2 nationals who have completed less than 12 months’ registered or authorised work are not covered by Article 12 of (EEC) 1612/68 and the judgments in Ibrahim and Teixeira is based on the notion that they have no continuing rights of residence as ‘workers’ in accordance with the worker registration scheme and the Immigration (EEA) Regulations 2006.

In CPAG’s opinion, this view is contrary to Community law. In Baumbast, Ibrahim and Teixeira, the primary carer had either never worked or had ceased to work and neither the children nor the primary carer were ‘qualified persons’ for the purposes of the regulations. Article 12 is concerned with the right of workers’ children to be admitted to the host state’s mainstream education system. The DWP accepts, as it must, that an A8 or A2 national working in accordance with the UK’s registration and authorisation scheme is a worker covered by Articles 7(2) and 12 of Regulation (EEC) 1612/68. The ECJ also made it clear in Ibrahim and Teixeira that Article 12 also applies to former migrant workers.

The DWP asserts that an unemployed A8 and A2 national who has completed less than 12 months’ registered or authorised work is not a former migrant worker because of the derogations permitted by the accession treaties for A8 and A2 nationals. The accession treaties do not, however, allow for any derogations in respect of Articles 7(2) or 12. They only permit member states to limit access to their labour markets during the accession period. There are no derogations permitted in respect of A8 and A2 nationals who have been admitted to the UK labour market under national legislation.

The position adopted by the DWP is therefore contrary to both EC law and caselaw. It is simply not open to either the DWP or the UK courts to unilaterally decide that the children and primary carers of A8 and A2 nationals admitted into the UK labour market have inferior rights to nationals of other member states.

Practicalities

Claims for benefits can and should be made on the basis of residence rights as the primary carer of children in education following self-employment, or less than 12 months’ registered/authorised work. If there are delays in getting a decision, an interim payment should be requested. There is, of course, a right of appeal against a refusal of benefit, but a quicker route to getting appeals heard by a higher court may be to request a social fund crisis loan and a review and further review of any refusals to pay a loan up to the social fund inspectors. A refusal by a social fund inspector can then be challenged by way of an urgent judicial review.

CPAG’s legal team would be more than happy to assist with any such challenges.

 


Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.