RTR

Hi,

I have a client who went on Maternity Leave in May 2006, child born in August 2006, end of Maternity leave cl did not go back. DWP say no RTR based on Ibrahim and Teixeira etc because child was not resident in the UK at a time when my client was exercising her right in to the UK as a worker.

I always understood that being on Maternity Leave counted as being employed and working, which is becuase until you leave you would have a contract of employment?

Anybody get anything that I can use to support this or tell me that I am wrong?

Many thanks.

Utter nonsense. She has a RtR. And the maternity leave is a red herring. She will have a RtR if she has ever worked in the UK and child installed themselves (or was born) in the UK whilst the parent exercising Treaty rights was also present here (i.e. the parent need not have been working at the time).

Refer them to their own guidance;

“A claimant will have a right to reside in the UK under Article 12 of Regulation (EEC) 1612/68 where
1.
the claimant is the parent and primary carer of a child in education in the UK (see DMG 071252 below) and
2.
that child in education is the child of a citizen of another EEA Member State (or Switzerland) who is working or has worked as an employed person in the UK (see DMG 071253 to DMG 071255 below) and
3.
there is a common period where the child was in general education in the UK and the migrant worker also lived and worked in the UK1 (see DMG 071256 below) and
4.
the child is still in general education in the UK and is under 18 (see DMG 071257 to DMG 071259).”

Decison Maker’s Guide - paras 071250 - 071259.

I assume the child was in education on the date of claim?

Past Caring, thanks for that although my client was not in work when child went to school. From the child being born to education the parent was only on maternity leave for a short period, not worked since.

Chacha, yes child now in education and at the date of the claim to ESA. The whole issue boils down to the period that the child was born, which is when client was on maternity leave, and does this mean that counts as working when child, who is now in education, was born.

Cheers and sorry if my post was not clear.

“DWP say no RTR based on Ibrahim and Teixeira etc because child was not resident in the UK at a time when my client was exercising her right in to the UK as a worker”.

Neither was Mrs Teixeira’s.  Para’ 49 of Teixeira is in the following terms:

“It follows that, once the right of access to education derived by the child from Article 12 of that regulation (1612/68 – my insert) has been acquired as a result of being installed in the Member State in which one of the parents works or has worked, the right of residence is retained by the child and can no longer be called into question because the conditions which were set out in Article 10 of that regulation are not satisfied”.

In my view Teixeira establishes at least four things in respect of the child’s right to education.  First, the working parent(s) do not need to be working in the host member state when the child goes into education.  It is sufficient that they have worked in that State.  Second, the child does not need to be installed in the host Member State at the same time that the parent(s) are working.  Third, the parent(s), if not working, do not need to have retained worker status under EC Directive 2004/38.  And, fourthly “the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there” (para 70 of the ECJ judgement).  So, once the child’s right to education under Article 12 of EC Regulation 1612/68 has been established then it follows that so has the right to reside of the parent who is that child’s primary carer

Edited to insert the words “to reside” in the last line

roecab - 03 February 2014 11:37 AM

Past Caring, thanks for that although my client was not in work when child went to school. From the child being born to education the parent was only on maternity leave for a short period, not worked since.

Apologies.

Was intending to quote the section as it is quoted in Volume II of the Social Security Legislation (the annotations to IS reg 21) - where the DWP actually got it right - but rather than type this out by hand, cut and pasted from the DM Guide itself - without realising they’ve subsequently changed the guidance (and got it wrong again).

What nevip says above is right - and yes, your client remained a worker in fact (rather than retaining worker status) whilst on maternity leave.

I’m not so confident:

The language used by the ECJ in describing which children have rights under Article 12 Regulation 1612/68 (now Article 10 EU Regulation 492/11) is to state simply that the child must move to (sometimes the Court says “be installed in”) the Member State during a time when “when one of his parents was exercising rights of residence there as a migrant worker.”

This, or materially identical language is used in all the following cases:
- Czop and Punakova joined Cases C -147/11 and C-148/11 [2012] ECR
- Steven Malcolm Brown Case 197/86 [1988] ECR 03205, at para 30.
- Teixeira Case C-480/08 [2010] ECR I-01107, at para 52
- Gaal Case C-7/94 [1995] ECR I-0103, at para 27

The Brown case is particularly unhelpful for you - at para 30:

“30 The fifth recital in the preamble to Regulation No 1612/68 indicates that that regulation is intended to establish freedom of movement for workers by, inter alia, eliminating obstacles to the mobility of workers, in particular as regards the worker’ s right to be joined by his family and the conditions for the integration of his family into the host country . It follows that Article 12 of the regulation must be interpreted as meaning that it grants rights only to a child who has lived with his parents or either one of them in a Member State whilst at least one of his parents resided there as a worker . It cannot therefore create rights for the benefit of a worker’ s child who was born after the worker ceased to work and reside in the host State .”

Can’t you argue instead that whilst the parent was on maternity leave they simply were a worker? That was your initial (and in my view correct) starting point.

Martin, that is what I think I will stick with. On Maternity leave so migrant worker when child born, now child in education derives rights from that child. Thanks to all for your responses.

I think I’ve changed my mind and would tend to agree with Martin.  But, I would leave the argument open that (unless there’s binding case law to the contrary on the point) a child who installed himself while a parent retained worker status has a right to reside under Regulation 1612/68 in a situation where the parent subsequently lost worker status.

My original line seems to stand up.

•It has now been confirmed that a woman who is on maternity leave (including unpaid maternity leave) is still a worker (CIS/4237/2007) - From :

http://www.cpag.org.uk/content/right-reside-pregnant-pause

I can’t think who wrote that, Martin?

As far as I am aware CIS/4237/2007 remains ‘good law’?

Yep…

Nevip -on the sub point of whether if a child in UK only when parent is retaining worker status then the regs exclude that but I tend to agree there would be an argument. Something like this (sorry for repetition I did a cut and paste job with a part of this before):

Regulation 15(6)(b) of the I(EEA) Regs 2006 provides that it is not sufficient for a child to reside in the UK only at a time when their parent was exercising a right of residence as someone who retained worker status. It is arguable this is wrong. The language used by the ECJ in describing which children have rights under Article 12 Regulation 1612/68 (now Article 10 EU Regulation 492/11) is to state simply that the child must move to (sometimes the Court says “be installed) in the Member State during a time when
“when one of his parents was exercising rights of residence there as a migrant worker.”

This, or materially identical language is used in all the following cases:
- Czop and Punakova joined Cases C -147/11 and C-148/11 [2012] ECR
- Steven Malcolm Brown Case 197/86 [1988] ECR 03205, at para 30.
- Teixeira Case C-480/08 [2010] ECR I-01107, at para 52
- Gaal Case C-7/94 [1995] ECR I-0103, at para 27

It appears from the wording of Directive 2004/38 that a person who is retaining their status as a worker does reside in a country as a migrant worker. Article 7(1)(a) of the Directive is what gives a worker a right to reside:

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or […] in the host Member State; or

Article 7(1)(d) makes it clear that the family members of a worker also have a right to reside (or Article 7(2) for non-EEA family members). Article 7(3) then provides that

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or […]shall retain the status of worker or […] in the following circumstances:
....

It therefore appears that a person who is retaining their status as a worker under one of
Article 7(3)(a) to (d) of Directive 2004/38, is someone who is “exercising rights of residence [in the UK] as a migrant worker”. What this means is that a person who is retaining their status as a worker therefore has a right to reside as if they were a worker. This coupled with the language used by the ECJ suggests that if a child moves to (or is born in) the UK at a time when one of their parents retains their status as a worker then the child (and their primary carer) will acquire a right to reside when they commence education.

And, of course, member states should implement EC Directives in full and not restrict their scope.  So, where the scope is restricted it should be argued that the Directive should be followed and not the domestic regulations.