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primary carer home education

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jeanette
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Could any one point me to caselaw that defines ‘education’ for R2R as primary carer of a child in education? Parent home schools her children ages 3 - 15. I know primary education is excluded but cannot find any reference to home schooling. Our usual route is to provide evidence that the child is enrolled in and attending school, none of these children have enrolled or attended school since arriving in the UK in 2015.

Parents have recently seperated, they are married, wife has care of the children. Wife has never worked as she educates the children, husband is working full time in UK and has been for the last 2 years.

Thanks

Benny Fitzpatrick
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Does the relevant LA accept that the children are Home Schooled? There should be documentation to confirm this, if it is the case.

Philippa D
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Can’t find any case law specifically dealing with this and it’s not defined in the legislation either.

The derivative right to reside was originally established (in the Baumbast case) in order to allow the child to exercise their right to attend general educational courses in the host state on equal terms with nationals of the state (Regulation 1618/68).

The regulation has since been repealed, although replaced with one which contains a similar provision, and the right has now been codified in UK legislation so I’m not sure how relevant Baumbast will be ... but given the lack of definition of “in education” in UK legislation, they could look backwards to what came before the legislation in order to interpret it. But that could arguably be imposing a limitation on the right which isn’t included in the legislation…

I think there’s an interesting legal argument to be had here if it goes to Tribunal. Not sure which side a judge would come down on though.

past caring
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jeanette - 21 June 2018 05:48 AM

Could any one point me to caselaw that defines ‘education’ for R2R as primary carer of a child in education? Parent home schools her children ages 3 - 15. I know primary education is excluded but cannot find any reference to home schooling. Our usual route is to provide evidence that the child is enrolled in and attending school, none of these children have enrolled or attended school since arriving in the UK in 2015.

Parents have recently seperated, they are married, wife has care of the children. Wife has never worked as she educates the children, husband is working full time in UK and has been for the last 2 years.

Thanks

If they are both EEA nationals (and they must be, otherwise the primary carer route wouldn’t work, even if the kids were in formal education) then she has a right of residence regardless - she is still her husband’s spouse, with a right of residence on that basis, until any divorce is finalised.

On the education point, I’m unaware of any caselaw on home schooling - but logically, it may not qualify. The UK’s codification of the EU rights of a worker’s children and their primary carers in reg. 16 of the I (EEA) Regs. 2016 defines ‘education’ as excluding nursery education but including education that is received before compulsory school age where the education is equivalent to education received at or after compulsory school age….....so doesn’t tell us much.**

However, the rights actually arises in consequence of the child’s right under Art. 10 of Regulation (EU) 492/2011 to be admitted into the general education system of the host member state and to complete that education. I can see how it would be arguable that a home schooled child had not been ‘admitted’ to the state’s general education system. That said, it could also be arguable the other way - I don’t know a lot of detail about how home schooling works, but assuming that a formal curriculum is followed, that it equates to the curriculum that exists in state schools, that there is some form of external and independent monitoring of the teaching and that the curriculum is being followed, that GCSEs or A levels will eventually be taken and qualifications hopefully obtained, then it might be arguable…...

** edited to add;

I think - but do not know - that the inclusion of education which is received before compulsory school age but which equates to the education which is received at or after compulsory school age may have something to do with the fact that the Scottish and Welsh systems are different. Certainly, I started formal education growing up in Wales in the 1960s aged 3. And in SSWP v IM (IS) [2011] UKUT 231 (AAC) whilst holding that the right arises when the child enters compulsory education around age 5, the judge also states specifically that this is the position in England - it may be different in Wales or Scotland.

In any event, I think that whilst the wording of para. 7(a) in reg. 16 (this is the bit that defines education) could be used to support an argument that what is crucial is the content of the education, rather than where it takes place…

[ Edited: 21 Jun 2018 at 10:11 am by past caring ]
jeanette
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Our LA have a register but initial enquiries show that there is little recording and observation around home schooling, so not sure that being on the home school register would be enough. I think I need to investigate this more with the LA. I should have mentioned they are not legally married which is why I am not using the spousal route to R2R.

jeanette
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I seem to have cross posted. They have an Islamic marriage (I know an important omission in my first post).

There is no curriculum to follow with home schooling and it would seem, no formal recording or exams. My concern was that they have been home educated in other EU countries where they have lived and therefore the children do not need to remain in the UK to complete their education.

[ Edited: 21 Jun 2018 at 10:15 am by jeanette ]
past caring
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Which only goes to show why we should use terms precisely when outlining the facts of a case. :)

chacha
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jeanette - 21 June 2018 05:48 AM

Parents have recently seperated, they are married, wife has care of the children. Wife has never worked as she educates the children, husband is working full time in UK and has been for the last 2 years.

Not sure if I’m missing something? The fact she is still married and husband is still a “worker”, alone, gives her a right to reside and does not require a derivative right until she divorces the “worker” or he stops working.

Please ignore me and the above, if somehow this doesn’t apply, I have not seen you mention one or the other of the couple is a UK citizen so I’m assuming they are both EEAs.

ClairemHodgson
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jeanette - 21 June 2018 10:12 AM

I seem to have cross posted. They have an Islamic marriage (I know an important omission in my first post).

if their marriage is solely islamic (no civil ceremony) and not recognised in their home jurisdiction as a marriage then they may not be “married” .... much depends on the relevant countries laws on the point.  I can’t remember much about UK law on this issue, but memory tells me that if you get married here it has to be civil as well as religious to count (so lots of muslims/hindus/sikhs/jews do register office AND religious ceremony).

therefore, IMHO, the question is whether there is in fact a marriage at all, and if not, does living together count for this purpose?

also be careful as if they ONLY have an islamic marriage and NO civil marriage, you may find that he’s already divorced her ....

jeanette
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There is no question of R2R as a spouse and living together does not count which is why I need to look at the primary carer and education.

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jeanette - 21 June 2018 04:24 PM

There is no question of R2R as a spouse and living together does not count which is why I need to look at the primary carer and education.

I think from what you’ve already said on that point it’s hopeless. The right is for a child of a worker to be admitted into the general education system of the host member state and to then complete that education. The primary carer’s right is called a ‘derivative right’ because it derives from that - i.e. in order to give effect to the child’s right.

Home education may just about be arguable where it involves following a curriculum which is pretty much on all fours with the state national curriculum, where the teaching of that curriculum is subject to independently verified quality assurance, where the child’s attainment is monitored and a plan put in place to bring it up to expected levels where necessary and where the child will be sitting the same exams and obtaining the same qualifications as children in the state education system.

But that is not happening here is it? What the children are being ‘taught’ is entirely at the whim of the mother and could well be that the earth is flat. The case is hopeless - mum either needs to get a job, apply for JSA if in a live service area, or get the kids into a real school.

Elliot Kent
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I tend to agree with what’s said above as far as Article 10 rights go - the problem is that Article 10 is concerned with attendance on courses and there is no course here.

However, I don’t agree that your client’s case is hopeless because there appears to be another argument (shamelessly nicked from CPAG) which essentially goes as follows:

(1) Father is an EEA worker and therefore has a right to reside.
(2) Father’s family members also have a right to reside.
(3) Family members include descendant relatives under 21.
(4) The Children each therefore have a right to reside under the Directive - even ignoring Article 10 entirely.
(5) The right to reside of the Children - who cannot live in the country on their own due to their age - would be meaningless if they were not allowed to be accompanied by their primary carer (as the ECJ held in respect of Article 10 children in Baumbast, Teixiera and Ibrahim and in respect of self-sufficient children in Zhu and Chen)
(6) To give effect to the rights of the Children, a derivative right must therefore be extended to Mother.

My understanding is that there is a UT decision on this point in the works.

past caring
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It’s an argument that I’ve used successfully at FtT over the years - and the SoS has, I think, taken a strategic view of whether to appeal to the UT - i.e. though they’ve asked for a statement of reasons, they’ve decided not to go to UT for fear they might lose.

The UT hearing was last week - will just have to see how it goes. However, even if the argument succeeds at UT, this particular client may still want to give serious consideration to either finding work herself or getting the kids into mainstream school - it’s never the best option to have your sole right of residence entirely dependent on the choices of someone else, particularly where you are estranged from that individual.

chacha
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jeanette - 21 June 2018 10:12 AM

I seem to have cross posted. They have an Islamic marriage (I know an important omission in my first post).

There is no curriculum to follow with home schooling and it would seem, no formal recording or exams. My concern was that they have been home educated in other EU countries where they have lived and therefore the children do not need to remain in the UK to complete their education.

Not sure how I missed that.

Anyway, have looked into this a bit more though, is it not discriminatory to decide anyone home schooling is not in education? They actually don’t have to follow the national curriculum, it’s the parent choice. Saying that, it will need to be registered with the local authority they reside in. 

“As a parent or guardian you have the right to educate your child at home in the way you feel suits them best as long as you comply with Section 7 of the Education Act 1996.”


s7 Duty of parents to secure education of children of compulsory school age. The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a) to his age, ability and aptitude, and


(b) to any special educational needs he may have, either by regular attendance at school or otherwise.


https://www.hertfordshire.gov.uk/media-library/documents/schools-and-education/information-for-parents-educating-their-child-at-home.pdf

Edited to add: This is not taking anything away from the arguments already put forward.

 

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I can’t see how you’d argue discrimination in this;

1. Art. 10 of Regulation (EU) 492/2011 is an anti-discrimination measure - it prohibits the host member state from denying the children of migrant workers access to state education. But neither the UK government nor Strasbourg have denied parents the right to choose to educate their children at home - they can do so if they wish.

2. But if the parent chooses to home educate, they can hardly argue discrimination on the basis that either a) the child has been denied something - they haven’t been or b) the parent has been denied a right of residence required to facilitate the child’s right to education (that is where the derivative right comes from here) when the education in question could take place in any country - even one outside the EU.

And on a practical level,  there could be no argument that it is the UK courts trying to restrict rights that exist in EU law - the plain words of Art. 10 of Regulation (EU) 492/2011 are ones in the legislation as enacted by the European Parliament itself. So any challenge would have to be to the ECJ directly on the basis that Strasbourg has enacted discriminatory legislation - I’m not sure of the practicalities of making such a challenge, but I do know that Brexit will have been and long gone well before such a case got anywhere near the ECJ.

chacha
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past caring - 26 June 2018 06:10 PM

I can’t see how you’d argue discrimination in this;

I am looking at Jeanette’s initial post, which seems to me to suggest that is exactly what she thinks is going to happen?