R2R A8 and baumbast

Hi all,

I was wondering what to make of CIS/3378/2007 in cases we have awaiting a hearing where we rely on client retaining r2r by virtue of child in education where 12 months regestered employment not compleated?

regards

Phil

I don’t think the decision you refer to is relevant to the application of Teixeira and Ibrahim (the Baumbast argument) to A 8 nationals who have done less than 12 months under WRS. We have a case in the UT on 11/09/10 which is being run by CPAG and will be heard with 2 other cases - our client is an A8 who worked for 18 months before employment brought to and end, only 8 of these were registered.

She put her kids into education whilst in registered employment, so the issue is the applicability of Teixiera and Ibrahim to her, having done less that 12 months WRS. The FtT awarded her IS but the DWP have brought the appeal.

Does this fit the facts of your case as well, in which case we will have to await the UT decision after 11/09?

In my view, this case would appear to equally assist Accession National parents of school age children, whether of not they have completed 12 months registered or authorised work. I think only Articles 1 to 6 of Regulation 1612/68 are subject to derogation in respect of Accession Nationals. It is also, and separately arguable that Accession nationals who have done any amount of registered or authorised work should thereon qualify as ‘workers’ for the purposes of Article 45 (formerly Article 39) of the EC Treaty, and thereby derive Article 12 rights (this being Article 12 of Regulation 1612/68).  However, I seem to recall that the DWP issued guidance to the effect that accession nationals are only assisted if they have done their 12 months, but without any explanation, so far as I can remember.

hi

attached link to newly added briefcase summary of CIS/3378/2007.

cheers ros

As mentioned by PCLC, CIS/3378/2007 concerns the Article 18 possibilities to establish the RTR, outside the terms of the domestic EEA regs or the Residence Directive. Parents of children in school are relying instead on Reg 1612/68, so 3378 seems to be irrelevant (it lost anyway!).

Seems to me that Article 18 possibilities seem to be drying up and the years go by. Just had a look at CIS/0381/2010, another compassion free zone (although I realise compassion has nothing much to do with it). Is it just work related cases like CIS/408/2006 that stand an Article 18 type chance? It would be useful to pull together all the successful Article 18 cases, to help us prevent wasting our collective time.

Steve

PCLC could you let us know how the case goes and what the reference is? We have a similar one going to tribunal.

How confident are you? I cannot imagine how they could successfully argue that the decisions do no apply to A8/A2 nationals who have not completed the 12 months registered work. Then again who knows.

Edit: 11th September? Isnt that a Saturday?

You’re right - got the date wrong, its the 16th. Doubt we will get any decision on the day - its also linked with 2 other appeals on similar R2R issues (though I am not clear what these are - will find out more on the day).

I have not seen CPAG’s submissions yet - they are running the case as a test case.

Just to say the three linked cases went before Judge Jacobs in the UT on 16th. No decision yet but some issues may be referred to ECJ. On one of the cases the client had an unrevoked residence certificate and the DWP have 2 weeks to make further submissions on whether this alone provides a R2R.

All were appeals brought by the DWP against successful FtT decisions. Our case, represented by CPAG, concerned an A8 national who had dome 10 months work under the WRS and put her child into education whilst under the WRS before her job finished. The issue is whether she could take advantage of Art 12 rights as in Baumbast, Teixeirs and Ibrahim, or did the Accession Regs prevent this?

One of the other cases run by CPAG was an A8 national who was self employed when she put her child into education. Could she also derive rights from Art 12? The submissions from CPAG were also of general importance to any self employed EU national as it was argued that the rights of the employed and self employed have always been the same in EU case law.

The third case, run by the Mary Ward centre, concerned an A8 national who had been self employed but then brought her child to the UK and installed the child in education after she had ceased self employment - the issue being the same i.e could she derive a R2R from Art 12?

I have simplified the facts somewhat but this was the broad gist of the cases. So if anyone has similar cases I would say wait for the ruling, though I suspect these cases will go higher whoever wins at the UT.