Can someone confirm or otherwise my view on this. I find this a very difficult subject with more questions than answers (that's not the bit I want confirmation on...)

Cl is a Portuguese national, originally from the Congo. Came to UK in Oct 04, with 4 children. Lone Parent. Initially supported by friends. Got job below NI contrib level from Jan 05 to Sept 05 when she left on Mat Allow as pregnant. Has child.

Children in school, has her own HA tenancy. Gets CB/CTC throughout, HB/CTB awarded on a revision challenge to LA.

April 06 starts to look for work again, but had fallen pregnant again so put in claim for IS instead, which is eventually refused. Has twins (if you've been counting that is 7 children now). This meant that even during early period of pregnancy she could not work as has back/hip problem which was exacibated by the pregnancy so GP advised not to work. No sicknotes were issued or sought as cl claim was as LP.

DWP refuse and we get her appeal.

Now, I've looked through CPAG, with its references to Art 12, Reg 1612/68, grey law books and even some discussions on Rightsnet. So on their basis, I think she had right to reside when she was a worker, but as is no longer a worker, nor work-seeking, she may have lost it. Unclear on how it could be retained, but that she may have right to reside through her children being in education (there was a thread on this and nursery education - that claimant won and it almost seemed if child is in school, R2R is given....but I could see no references)

I cannot find this in black and white - I may be not reading the correct reg's or missing what is in front of my face, but I need to prepare a written sub for UAT in a few weeks time and would like to know which reg's, caselaw I need to cite.

Or, alternatively, I may have got it wrong again.

This should help

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=3424&mode=full

Thanks Paul, will check it out!

Article 10 of Regulation (EEC) No 1612/68 holds that the spouse and descendants who are under the age of 21 have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State.

Article 12 holds that 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.

Paragraph 63 of Baumbast holds:

“…that children of a citizen of the EU who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68.”

Paragraph 75 holds:

“…that where children have the right in a host Member State in order to attend general educational course pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the status of the citizen of the EU has ceased to be a migrant worker in the host member state.”

On 30 April 2006, a new EC Residence Directive came into force. EC Directive 2004/38 repealed all existing EU residence directives and amended EC Regulation 1612/68. The Directive introduced a simplified system of conditions governing the right of residence for all EU citizens. The Directive allows for the right of residence to continue for children and their carers where a child is enrolled at an educational establishment until the completion of his or her studies. This only applies to children where a parent or carer has previously had a right of residence.

That was the basic argument I used in a R2R case

This is really great. Many thanks!!

OK, I've had some time to look through Directive 2004/38, but still have problems in its application to my client.

It seems to me that my client (the mother) does not have a right to reside in her own right (none of the conditions apply) but can be given the right to reside on the basis of her children (who are in school). BUT to do this, the children need to have health insurance in the host state (ie UK) and show they are not a burden on the state. I'm looking at Article 7(1)(d) for this, and in turn relying on 7(1)(c) which states the bits about the insurance and burden on the state.

How are these two things to be shown?

Re health insurance: do they need to have a policy with someone?
Re burden on the state: they are young children so have no income themselves.

Probably missing something obvious but cant see it.

The case I dealt with was exactly the same and my argument was that the mother had R2R conferred on her by her children. At no stage in three Tribunals or two submissions from the DWP did anyone mention health insurance or anything about the children being a burden on the state and I would have to say it's not something I picked up on.

I focussed purely on the fact that one of the children was in general education and that as such he had a R2R which was then conferred on his mother as principal carer.

A further thought - why do they need health insurance in the UK when we have a free NHS?

Thanks Derek.

Unfortunately in this case, in their submission the DWP mention EC Directive 2004/38 and mention that client does not fit any group with R2R, citing all of article 7, which mentions the insurance and being a burden.

I take the point about having access to the NHS though. Perhaps the argument is that in the case of children it would be nonsense to apply these conditions because as children they cannot take out insurance or are unlikely to have any of their own funds, so could never pursue an education?

Another thought on this.......

EC Directive 2004/38 repealed other regulations, but only amended Reg 1612/68. So 1612/68 still exists, it hasn't been replaced by EC Directive 2004/38 I take it.

I cannot find a copy of the amended 1612/68 (I think I need to update acrobat reader as I cannot get pdfs), if anyone can post a copy/link that would be great.

If 1612/68 still has an unamended article 12, then surely Baumbast would still apply (which I understood looked directly at article 12 which concerns children in education but without the conditions of insurance/burden on the state that art 7 EC Dir 2004/38 has).

(Thank goodness its Friday tomorrow!)

No ggod with links but I got it at WWW.ilo.org/public/english/employment/skills/hrdr/instr/eu_26.htm.

If that doesn't work Googling it should bring it up. (Google Regulation (EEC) No 1612/68)

Here is a chunk from a standard submission I do on the survival in full of the Baumbast principle post the introduction of Directive 38/2004:

27. The Tribunal is asked to note that Directive 2004/38 (and the Immigration (European Economic Area Regulations 2006) attempted to put some of what the ECJ said in Baumbast on a statutory footing- see Article 12(3) of the Directive for example). However, it is to be noted that the ECJ in Baumbast did not express themselves in such a narrow way (ie that a right of residence would go to the principal carer only in circumstances where the worker had died or departed the UK). Indeed, on the specific facts of Baumbast (see paras 16 to 19 of judgment) Mr Baumbast (who was the migrant worker in that case) had ceased working in the UK in 1993 and the issue was whether there was a right to reside for the child (and primary carer) in 1995. It is also clear that the Baumbast principle has survived the coming into force of the new residence Directive (it does not repeal Article 12 of EC Reg 1612/68 and furthermore the preamble to the Directive makes it clear that it strengthens the rights of residence of EU citizens rather than limiting them- see for example the third recital).

That's a great help. Thanks.

Just a further word of thanks to all who helped above

Had first of this kind of case today and cl won. Used the arguments expressed above. I think it was decided on basis of Reg 1612/68 and Baumbast giving R2R. DWP are instructed to ask for FWRs however, so we'll see exactly why it was determined so later. (Of course, this could also mean client's actual payments will be further delayed)