A slightly different take on it though.

A recent case with Baumbast tastes fell foul of a recent CA judgement, namely Ali vs Secretary of State for the Home department,<2006> EWCA Civ 484.

Not that I would presume to state the next phrase with any authority, but I think the Ali decision is wrong and hasn't properly disposed of the children's Art 18 rights at stake in Baumbast.

I need to find out whether leave to appeal's been sought to the House of Lords, and would be grateful of any links etc that might help me undermine this.

If anyone's curious about the judgement you can find it here...

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/484.html&query=EWCA+Civ+484&method=all

Hi Dan

Just read the above decision. This doesn't affect the principle in Baumbast that a person who has been a worker and has a child in education retains their right to reside by virtue of their child's having establsihed that same right even if they are no longer in employment. Is this correct?

That's what I thought,

However the presumption in Ali, so I'm told is that Baumbast was actually decided on the basis of the parent's Art 39 rights exclusive of the children's Art 18 rights which don't come into it. The Court in Ali states, at para 52 I think "Baumbast does not effect a right of residence upon the children", or something of the like.

That certainly doesn't meet my reading of the Baumbast decision.

The problem being that Tribunals are, to my understanding, stuck with it unless it's being appealed.

I don't see that Ali is inconsistent with Baumbast.

I read Baumbast as holding that where children have installed themselves in education whilst their parents were exercising rights as a worker, then the children have the right to rerside to continue that education even if the parents are no longer workers. The parents then had a right to reside to be with the children.

It seems to me that in Baumbast there were several steps to the process by which the kids, and Mrs B, had a right to reside:
1) Mr B had a right to reside as a worker
2) this gave the kids the right to education
3) when Mr B stopped being a worker, the kids had the right to continue in education, and therefore retained a right to reside (para 52)
4) Mrs B therefore had a right to reside to be with the kids (para 71-73).

In Ali the Court decided that the mother, who was an EU national, had never worked or looked for work and therefore was never a worker. The case therefore failed on the first of the steps set out above.

It was argued in Ali that there was a direct right under Article 18 to reside anywhere in the EU for the purposes of education. This was rejected by the Court. In doing so the Court did say (para 20)that Baumbast depended on the parents rights under Article 39 , but this is true in so far as Baumbast's initial right to reside was as a worker. The Court goes on to say "What is striking is that the Court nowhere suggested there that the child as a citizen of the Union had the right of residence simply by virtue of Article 18 and his pursuit of primary education." This seems to me to be right - Baumbast is about the retaining the right of residence after ceasing to be a worker, it simply does not apply if you have never been a worker in the first place. As regards the children's Art 18 rights the ECJ in Baumbast did not need to consider them, since it had already decided that they had a right to reside - see para 95.

And that, quite eloquently, summed up my submission to the relevant tribunal, however it's reply could be , at least comedically, summed up in words of one syllable and no more than four letters.

We'll just wait and see what the Commissioners say!

Cheers all!

Dan, please keep us informed as to how your case to the Commissioners proceeds.

At the moment I'm awaiting a Statement of Reasons for a Tribunal that did not allow my client's appeal on Baumbast grounds and will then consider an application for leave.

Thanks

I have a Baumbast case adjourned with directions for the DWP to produce a submission on my Baumbast arguments. It'll be interesting to see what they argue. Did their submission in your case address Baumbast Dan?

I did read the Ali case when I was preparing the case but for the same reasons as Keith set out it didn't trouble me at the time.

I'll post the ref when it comes in, we're waiting for the statement at the mo'

Well the statement's in and LTA has been refused by the chair after subs basically re-iterating the above, i.e. it's the kids rights under art12 1612/68 pursuant to art 39 EC and that were being interfered with and not any "unfettered right" under art.18 EC.

Chair comes back with... "kids hgave a right to education but only in member state of origin" (sic).

Doesn't sound right to me, especially considering the Baumbast jnr's were in a different member state that their country of origin.

Any comments or ideas would be appreciated.

D

Application for leave to appeal went ot the Comm's a couple of weeks ago.

Hi,

I have an appeal that is currently with the Commissioner where Baumbast has become an issue as the chair allowed appeal at tribunal on basis of Baumbast

However SofS submissions state that client not entitled to rely on Baumbast as wrong way round, which is to say that client installed children in school then work then lost work. SofS states that because did not put children in school while exercising right as a worker not entitled to rely on the decision.

It is all slightly confusing and seems that we need an authority on it one way or the other as I can’t see why if the person was a work seeker why they could not rely on Baumbast

Please, as Cliff also requested keep us updated, many thanks

Baumbast vs Ali in the Secretary of State's grand tournament...

The fight of the week?...

CIS/1121/2007

leave to appeal granted 18/6

"it is arguable that the... analysis of Ali... was not entirely accurate. Did the children have a subsisting right of residence... by virtue of the claimant's former status as a worker?

If so the claimant may have a (Baumbast argument. My insert, square bracket's don't work). A proportionality argument for the claimant might be difficult to sustain." (Worried about that last bit and will give it some thought)

Mr Comm'r Rowland.

Hi, sorry for the delay but the Commissioner has been looking at this in detail, it seems

Anyway the Commissioner has directed the SofS to make submissions on why Baumbast is not applicable in my clients case, as the SofS argues that cannot rely on it as installed children into school then worked then lost work, the Commissioner is not swayed by this

So may be positive news, at last

Hi folks,

I have a case where an unmarried Italian woman and her two children joined her partner (the children's father) in the UK.
The father was, and still is, working in the UK.
During the summer, between the older child moving from nursery to primary school, the father walked out. They don't know where he is now.
The client wishes to remain in the UK as younger child is autistic and they receive a huge amount of support that would be unavailable in Italy.

Any thoughts on the Baumbast/ Ali situation in this case would be greatly appreciated!

Just very quickly, i think she remains the relative of a worker i.e. a family member this is the case until they are divorced if they where married, which is why this is qucik as your post does not make it clear if married.

cheers

To be fair, she does specify that the woman is unmarried which, presumably, is why she's posted this in a Baumbast related thread rather than one about families of E.U workers.

oops...thats what you get for rushing

As the kids are family members of an EU worker, have taken up their 1612/68 right to complete their education while their family member was a worker and whatever dad's doing now mum's their primary carer, i'd imagine it's a Baumbasty situation.

Thank you! This subject gives me brain-ache

Hi,

Just to inform all that have been involved with this thread that the Commissioner in the Baumbast R2R case i am involed with has directed that the case has an oral hearing

Further to this it is also noted in the directions that it be linked to 2 other cases involving the Baumbast and its interpretation, which are RIBEIRO CIS/967/2007 and IBRAHIM CIS/963/2007

I will be looking to refer this on

So that I can keep my client informed, is theer any hint of a likely date?

On that note, it seems it's not material to mine as it's been decided today. Don't know what the decision is yet... I'm excitied now!

Any idea when you'll get the decision Dan?

I'm told bt the Comm'rs Office that it should have been here by the end of last month so I would expect imminently.

Decision's in, but not up on the OSSC website yet.

Mr Comm'r Rowland, while accepting that Baumbast is distinguishable from Ali has refused to accept that Baumbast arguments are applicable after the imposition of 2004/38/EEC.

"Baumbast and R was decided at a time when the advocate general was able to say that EC legislation had not kept pace with... developments. Since the decision the Council has adopted 2004/38/EC... That directive addresses the issues raised by the facts of Baumbast but does not assist . It is clear that that is delibarate. The directive provides that a person may acquire a r2r... not conditional on any member of the family continuing to exercise a right to freedom of movement or being self sufficient but only after a period of time... It also provides for a (r2r) upon departure from the host member state... or the death... or family breakdown."


We'll be seeking advice about a possible appeal... watch this space.

What a disappointment! If its not too big could you fax me a copy of the decision on 0161 793 3785?

It's on it's way

Any chance you could fax it to me as well, Dan?? I have a Baumbast appeal which should be on it's way to the Commissioner by the end of this week and it looks like your decision will definitely impact upon it.

My fax is: 02890 236340

If it's now available online, can someone post up the link (doesn't seem to be up on OSSC website yet)

Cheers,

Lee

Lee, I'll fax it across.

CPAG have expressed an interest, although admittedly tentatively, in taking this to appeal so watch this space...

The decisons on the OSSC site now at:

http://www.osscsc.gov.uk/judgmentfiles/j2304/CIS%201121%202007.doc

Skimming the latest issue of 'Legal Action' there is a report at p.37 of a housing (homelessness) case succeeding at County Court on precisely the grounds noted above - that 2004/38 left article 12 of 1612/68 untouched, contra Rowlands opinion. May be of some help if there is to be any appeal.

Richard Atkinson

Well, recent developments may indeed be the epitaph of our holiday hopes.

CPAG seem to be advising that in the two cases they're considering taking forward, the worker status of both appellants doesn't seem to be on firm enough ground to guarantee that something won't go pear shaped.

I believe they're looking for a test case though, if anyone's got a Baumbast type arrangement where the claimant has done a decent amount of work then flag it up!

It's probably still worth arguing it though, and sticking in the fact that art 12 1612/68 EEC wasn't amended and is still in force; as this is the part that benefited Mr Baumbast then arguably the decision is still good law and Mr Comm'r Rowland is wrong.

I'll be copying this post elsewhere...

Don't knwo whether Sarah @ CPAG might be willing to post the opinion yet. I'll find out...

Have just received notice from the Commissioner's office that the Secretary of State is asking for the oral hearing in these appeals to be adjorned in light of the case in Harrow v Ibrahim

In Harrow v Ibrahim she argues that she has a right to reside based on Art 12 of Regulation 1612/68. The COA reserved it's jugement but has indicated that a preliminary reference to ECJ may be on the cards as the records notes that a signifcant issues is the proper interpretation of the ECJ's jugement in Baumbast

The SofS recognises the cases in Harrow v Ibrahim as being sufficiently related in facts and issues to the joint appeals due to be heard by the Commissioners

As yet no reply from the Commissioner to the request

Please note mid-way through it should read....as the recorder notes....

oops.....

Have we got a citation number for Harrow vs Ibrhahim? It's be handy to check the Court's case tracker.

Ta

Dan

Case number is B5/2007/2534

i was sent a copy of the judgment but should be on BALII

An adjournment has been granted....

hello, can't see teh decision on Bailii yet, any hopes of a fax copy.

This could be imminently material, my CA d/l is 7/3.

Say yes and I'll mail you with the fax number.

Oh, and it'll be useful for a hearing the morra as well thinking about it so...

please please please etc

i'm at home at the moment but am in the bureau tomorrow send me your fax number and i will fax first thing..is that ok?

Could you fax it to me courtesy of the Tribunals Service on 0121 634 7201, if you stick it for Dan Manville, rep 4th floor I'd hope to get it.

Cheers.

Cheers for that, i got it in teh nick of time...

So thE position we seem to be in is that Mr Comm'r Rowland says Baumbast doesn't work anymore because of 2004/38, however thE County court says it does because article 12 EEC/1612/68 wasn't amended by 2004/38.

must say that it was a recorded sitting at the County Court but I don't know whether that's material.

I'm under the impression that he County Court doesn't set precedent.

Conflicting authorities?

Im not sure if sets or does not set a precedent although as noted the Commissioners hearing on the point has been adjourned so persumably it will ultimately have some bearing?

sorry if of the quality it was low as it was a fax to me and then onto you but glad you received it

In R(IS)15/99 it was held that “decisions on substantive issues of social security law made by the High Court in exercise of its supervisory jurisdiction were to be regarded as made in a jurisdiction co-ordinate with that of Commissioners and therefore a Commissioner was not bound to follow a decision of a single High Court judge although he should do so unless convinced that it was wrong (paragraph 19)”.

On that basis I would say that the commissioners were not bound by decisions of the county court.

The county court is not a court of record. Its decisions do not bind anyone at all. Only the High Court can create precedents in civil matters (and of course the courts above it). Tribunals and DMs are bound by commissioners, though as no two commissioners ever agree about anything they have a certain freedom to decide which ones they prefer, subject to the ruels about reported decisions, starred decisions and Tribunals of Commissioners, of course...

Isn't the point that if the ECJ does hand down a judgment on the issue that this would be binding on the Commissioner and so best to wait for the outcome? I don't think that the Commissioner in adjourning the hearing as done so on the basis that the CC decision binds him, or that this was suggested only that he agreed to adjourn pending the outcome of what could be a determative decision on the application and meaning of Baumbast.

Would someone be so kind as to fax me a copy of the decision in Harrow v Ibrahim?? Fax number is 028 90236340. Much appreciated.

We have two tribunals coming up and I carnt find Harrow v Ibrahim anywhere I would be grateful if we could have a faxed copy or a link to this decision.

Thanks

I'll see if I can find the file.

Thanks Dan

our fax number is 01162995644

sorry for the delay in posting but have been in my other job till today.

regards

phil

I'l apologise as well, was off sick last week.

Dunno how well it'll fax as it's already rather faxed but i'll try mi best!

Dan

Sorry to be a pain but I've got a similar tribunal on friday. Is there any chance you could fax the decision to me on 0141 287 8750?

Sorry for the bother

David

Cheers Dan

Got the copy through - its mostly readable!

Gives me something to argue on Thursday

David

What's happening with that oral hearing?

it is going to be a long adjournment by the looks of things....

Any reason why? I've got a terrible feeling you're going to say "ECJ"...

http://www.bailii.org/ew/cases/EWCA/Civ/2008/386.html

referall to ecj re baumbast, case of ibrahim...

The decision Clair has sent the link is quite important. It also relates to one our cases that had been at the Commissioners, was stayed pending this decision, and the Court of Appeal has now refered it to ECJ, so it will sit there until the judgement comes.

The referal part is as follow:

The referred questions:

We therefore refer the following questions to reflect the matters debated before us:

In circumstances where (i) a non -EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU

national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:


(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;

OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and
(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

another referral to the ECJ from the Court of Appeal .. this time in a housing case ...

Teixeira v London Borough of Lambeth <2008> EWCA Civ 1088 (10 October 2008)

http://www.bailii.org/ew/cases/EWCA/Civ/2008/1088.html

Does anyone have any idea when ECJ are likely to deliver decisions in Teixeira and Ali? (I've an appeal which the Judge has adjourned pending a decision in Teixeira.)

Thanks

Paul.

see the decison making and appeals forum for an update re the Teixeira and Ibrahim cases ...