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A8 & gap between work ending and child entering education
I have an A8 national who has completed 4 years work in the UK. DWP accepts she has completed her minimum 12 months of registered employment. She has a disabled baby and gets disability living allowance and carers allowance. She also has another child who commenced school in the UK on 13/09/10.
Her last employment (part time due to her caring responsibilities) ended on 20/08/10. She claimed income support as a lone parent on 24/08/10 and it was refused on 26/11/10.
We therefore have a gap of just over 3 weeks between her employment ending and the child entering education.
Client is not able to look for full time employment because of her disabled baby and this is why she claimed IS not JSA.
The IS refusal is because she was not a worker when her child entered education.
Does anyone have any ideas about arguments for income support appeal or is it just un-winnable because of the gap?
Hi there, I’m new to rightsnet and hope my first post is of use to to you.
As the DWP have dragged their feet before making a decision on entitlement and Teixeira
bites prior to decision date then entitlement should have been awarded from the date the dependant
commenced education.
I believe SSA 1998, 8(2)(b) applies in your case so no need for a new claim but there is no
right to reside prior to this date so no point in disputing the gap period but entitlement must
commence from September when the child started education… See Teixeira and CIS/0647/2009 (SSWP v JS (IS) [2010]UKUT347(AAC)).
I quote the relevant part of the ECJ ruling on Teixeira below….
“On those grounds, the Court (Grand Chamber) hereby rules:
1. A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
2. 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.
3. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.”
I don’t think your client will be able to rely on Teixera and Ibrahim. For the decisions to bite there needs to a be point in time when both the mother is a worker and the child is education, in your case this didn’t happen.
Judge Jacobs confirmed this in CIS/647/2009:
‘The operation of those cases depends on the circumstances at two points in time. At one point, a child is in education when a parent is a worker; I call this the first requirement. It operates to crystallise the child’s right to education under Article 12. It confers no right on the person who is the worker.”
What was her reason for leaving employment? If she was made involuntarily unemployed you may be able to argue that she retains her worker status. This is a bit of a long shot though and I would have thought it would not enable her to access Teixera and Ibrahim in the medium-long term based on the retained worker-status.
Alternatively, if she can work another year, she can establish her permanent right to residency which is better for her in the long run.
[ Edited: 14 Dec 2010 at 10:09 am by AGodfrey ]Judge Jacobs confirmed this in CIS/647/2009:
‘The operation of those cases depends on the circumstances at two points in time. At one point, a child is in education when a parent is a worker; I call this the first requirement. It operates to crystallise the child’s right to education under Article 12. It confers no right on the person who is the worker.”.
Judge Jacobs also confirmed in CIS/647/2009 that a 2nd requirement for a right to reside “a point when a child is being looked after by a primary carer who does not have a right to reside and the child is in education”!
Article 12 gives a right to reside to the child regardless of the “parent’s”/“primary carer’s” rights. In your case Ibrahim/Teixeira bites following on from Baumbast. But this can only apply from the date the child started education. As I stated earlier, the DWP had not made a decision on Income Support at the relevant time(When the child started education) so they should have awarded benefit from that date. [ In accordance with SSA 1998 8(2)(b)]
I don’t think that Teixeira is authority for that (a person being a worker when the child starts education) and I’m not sure that Judge Jacobs is saying so apart from the facts of the case before him. The relevant part of the judgement is as follows:
“Question 2(c)
By point (c) of its second question, the referring court asks essentially whether the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.
According to its wording, Article 12 of Regulation No 1612/68 applies both to a child whose parent ‘is … employed’ in the territory of the host Member State and to one whose parent ‘has been employed’ there. Nothing in that article indicates that its scope is limited to situations in which one of the child’s parents had the status of migrant worker at the precise moment when the child started in education, or that the children of former migrant workers have only a limited right of access to education in the host Member State.
As stated in paragraph 50 above, the child’s right of access to education under Article 12 of that regulation does not depend on the maintenance of the status of migrant worker of the parent concerned. Children of former migrant workers can therefore rely on the rights deriving from Article 12 on the same basis as children of citizens of the Union who have the status of migrant workers.
In the light of the case-law referred to in paragraph 37 above, it is enough that the child who is in education in the host Member State became installed there when one of his or her parents was exercising rights of residence there as a migrant worker. The child’s right of residence in that State in order to attend educational courses there, in accordance with Article 12 of Regulation No 1612/68, and consequently the right of residence of the parent who is the child’s primary carer, cannot therefore be subject to the condition that one of the child’s parents worked as a migrant worker in the host Member State on the date on which the child started in education”.
In his case Judge Jacobs refers to Teixeira merely in passing and gives his judgement mainly following Baumbast. Indeed, he specifically refers to the first and second Baumbast requirements in the following passage:
“The claimant undertook full-time work. She did not register immediately, but she had registered by the time her children were in education in this country. She never acquired the full worker status. She did, though, acquire temporary and conditional worker status under regulation 5(2). And when she had that status for the time being, her children were in education. Focussing on that moment, she satisfied the first Baumbast requirement. Later, she was no longer working but she was the primary carer of her children who were still in education. At this time, she made her claim for income support. Focussing on that moment, she satisfied the second Baumbast requirement. She claimed her right to reside in support of her children’s right to education. Her claim at that moment did not depend on having acquired the full advantages of worker status. It was entirely independent and based on her status as primary carer”.
Because of the facts of the case, which effectively settled the main point in the proceedings, (whether an A8 national needs to complete 12 months registered work for Article 12 of Regulation No 1612/68 purposes) Judge Jacobs did not wander into the territory of a person who was actually no longer working at the date that the child went into education. Thus the case is distinguished and a ‘Teixeira ruling’ still waits to be given to a case such as your client’s.
Thus the case is distinguished and a ‘Teixeira ruling’ still waits to be given to a case such as your client’s.
I’m not quite sure if I’m missing something here.
1) Your claimant was exercising treaty tights when the child was installed in the member state, UK.
2) The child has now commenced education.
3) Your claimant is the primary carer and was once a “worker”
I think all the boxes are ticked in line with the Teixeira ruling, ergo your claimant has a roght to reside from the date the child commenced education.
Is my interpretaion a bit simplistic?
No it is not. I agree with you and say that Teixeira is relevant and applicable here and the case should succeed. What I said above was that the case that Judge Jacobs was deciding was distinguished on the facts from the case here and decided mainly on Baumbast principles. Therefore un upper tier tribunal decision applying Teixeira directly to a similar fact case as this was needed to produce some certainty to these kinds of cases.
[ Edited: 14 Dec 2010 at 02:29 pm by nevip ]I agree, in CIS/0647/2009 the Judge’s decision is based mainly on Baumbast principles and broadly touches on Teixeira. The decision confirms A8s/A2s, that have not completed 12 months of registered employment can rely on Art 12 if they have a child in education.
Many thanks for all your comments above.
My client was not a worker or work seeker when her child began education - the child started school 3 weeks after my client finished work, which is why I wondered if we could be successful.
However, since my original post Wick has now agreed with my argument to pay IS from the date the child started school, as this was before the claim had been decided upon, so the 3 week gap between employment ending and education starting has not proved fatal.
Yep, I am completely wrong! No need for there to have been any overlap in terms of child being in education and the parent being a worker.
The new DWP guidance issued on 23/12/10 contains the following:
“For the primary carer to derive a right of residence from Article 12, there must be some common period where both the migrant worker was employed in the UK and the child of the migrant worker was in general education in the UK1. They do not, however, need to have lived in the same household for this common period. The migrant worker does not need to have been in employment before the child came to the UK, or before the child started education.
1 S of S for W & P v JS (IS) [2010] UKUT 347 (AAC)”
I’ve searched for the reference and cannot find it. I suspect it should be the Judge Jacobs case discussed here. It seems to me therefore that this is a long way from being resolved. I don’t think the DWP have grasped the point that the whole thrust of the ECJ’s thinking in these cases is that the child’s right to reside in law as the child of a migrant or former migrant worker in order to pursue his education, once established, is not undermined in fact by an uncalled for or over narrow reading of the various regulations.
hi
i think you’re right - S of S for W & P v JS (IS) [2010] UKUT 347 (AAC) is neutral citation number for CIS/647/2009.
here’s a link to briefcase summary -
http://www.rightsnet.org.uk/briefcase/summary/right-to-reside/
cheers ros
Given that the DMG 30/10 clearly refers (both in the original version and the new revised version) to the need for a common period where the claimant was working and the child was in education I think my client’s case must have slipped under the radar somehow - as there is a 3 week gap between client’s work finishing and child starting school. Let’s hope they dont realise!
I had already warned my client I thought the appeal would fail and that she should claim JSA before the revised decision came through in her favour but she had elected to stick with the IS appeal.
I think it is worth taking a look at just what Teixeira actually means. To do this it is helpful to forget about the specific issue of social security benefits just for now. Essentially Teixeira is deciding that children of migrant workers, or more specifically children of former migrant workers, shall be afforded the same right to education in the host state as that of the host state’s nationals under article 12 of Regulation No 1612/68.
Once that is established, that right has to be made effective in practice as well as law. If that right can be made ineffective by denying the primary carer the right to reside then the child’s right under article 12 will have been breached. Thus, as Judge Jacobs said in CIS/0647/2009, “it is a right that is purely protective of the child’s right to education”. It is not a right dependant on the primary carer, or other parent, being a worker or former worker (although that is a condition for the child’s article 12 right).
Thus Teixeira develops from Baumbast and is not limited by it. So, to my mind, the Teixeira judgement has taken a step beyond Baumbast and opened the door for cases where the parent was not working when the child entered education. The ECJ in Teixeira asks itself “must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation … No 1612/68 … as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education”? And answers “the child’s right of residence in that State in order to attend educational courses there, in accordance with Article 12 of Regulation No 1612/68, and consequently the right of residence of the parent who is the child’s primary carer, cannot therefore be subject to the condition that one of the child’s parents worked as a migrant worker in the host Member State on the date on which the child started in education. Consequently, the answer to Question 2(c) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education”. The ECJ does not even discuss either situations of, or the need for, periods of employment of the parent following the child’s entry into education so the concept of any overlap forms no part of the thinking behind its judgement.
If once the child’s right has crystallized, one of the parents, who was a former migrant worker, had to work again at some later stage, then claims for IS made before that second period of employment would be bound to fail and the child’s effective right to an education in the host state would be lost by having to accompany the parent back to the country of origin. This would limit the scope of article 12 beyond the intention of the European legislators. The fact that some claimants might be able to claim JSA is irrelevant. Remember, Teixeira is not even concerned with benefits but the provision of accommodation.
Of course, the DWP are going to fight a rear guard action on this, possibly all the way to the Supreme Court, or, there will need to be a test case possibly taken up by CPAG. All similar fact cases to the one that started this post (whether A8 or other EEA former migrant workers) should, in my view, be appealed and fought until the matter is finally decided once and for all. Those who can, obviously, should claim JSA while appealing to give themselves an income providing, of course, they remain qualified persons under the EC Directive.