London Borough of Harrow v Ibrahim & Anor [2008] EWCA Civ 386

[2008] EWCA Civ 386

Case No B5/2007/2534

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT

RECORDER HOCHHAUSER QC

7EC02448

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/04/2008

Before

LORD JUSTICE RIX

LORD JUSTICE JACOB

MR JUSTICE FORBES

Between

LONDON BOROUGH OF HARROWAppellant

IBRAHIM1 ST Respondent

SECRETARY OF STATE FOR THE HOME DEPARTMENT2 ND Respondent

Mr Kelvin Rutledge, Miss Sian Davies (instructed by London Borough of Harrow Legal Services Department) for Appellant

Ms Nicola Rogers (instructed by Shelter Legal Services) for 1 st Respondent

Mr Clive Lewis QC, Ms Elisabeth Laing QC (instructed by Treasury Solicitors) for 2 nd Respondent

Hearing Hearing dates : Thursday 17 th January 2008

Judgment

Lord Justice Rix :

[1]This is the judgment of the court. The issue in this case relates to the disputed right to remain in the United Kingdom of a Somali mother and her young Danish children. She is married to but separated from her Danish husband, who has worked in the UK but, having ceased for a while to do so, first departed from the UK and then returned but since his return has continued not to work. None of the family is self-sufficient. The issue arises in a housing context. The mother seeks housing from the London Borough of Harrow. She is eligible for housing assistance only if her children of school age have a right to reside in the UK. If they do, so does she. If they do not, neither does she. That is because the housing legislation is premised on the applicant for housing assistance not being subject to immigration control, and that depends in this case on the mother’s right to reside here under EU law.

[2]The mother, Ms Ibrahim, in this court the respondent, says that she is entitled to remain here by reason of article 12 of Regulation (EEC) No 1612/68 (the “1968 Regulation”) taken together with the decision of the European Court of Justice (the “ECJ”) in Baumbast and R v Secretary of State for the Home Department (

Case C-413/99

)

[2002] ECR I-7091

(“Baumbast”). The London Borough of Harrow (the “Borough”), in this court the appellant, says that she must bring herself within the subsequent modern EU codification of the right of residence, namely Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law to be found in the UK’s Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), and that she cannot do so.

[3]This issue has so far been decided:(i) By Ms Jamil, the Borough’s housing assessment officer, who found Ms Ibrahim ineligible for housing assistance since neither she nor her husband were exercising a community law right to reside in the UK. By her decision dated 1 February 2007 (wrongly dated 2006), she distinguished Baumbast on the ground that Mr Baumbast was financially self-sufficient.

(ii) By Ms Hunnisett, the Borough’s housing review officer, upon a statutory review of the original decision, who confirmed the decision on the same grounds by her decision letter dated 29 March 2007.

(iii) On appeal to the Clerkenwell and Shoreditch County Court, by Recorder Hochhauser QC, who allowed Ms Ibrahim’s appeal on the ground that the 2004 Directive was not a complete code, that Baumbast stood apart as granting to Ms Ibrahim’s two older children who were at school a right to reside under article 12 of the 1968 Regulation in order to complete their education and thus to Ms Ibrahim a derivative right to reside as their primary carer, and that their right to reside in the UK was independent of any question of self-sufficiency. Recorder Hochhauser’s judgment is dated 18 October 2007.

[4]Permission to appeal from the decision of Recorder Hochhauser to the Court of Appeal was granted on the basis that Ms Ibrahim’s appeal raised important issues of principle.

[5]The Secretary of State for the Home Department was permitted to intervene as an Interested Party before Recorder Hochhauser, and as such is entitled to be heard on this appeal as a respondent party to it.

The essential facts

[6]The facts are not in dispute and were found by Recorder Hochhauser as follows.

[7]Ms Ibrahim is a Somali national. She is married to but separated from a Danish citizen, Mohamed Bashir Yusuf (“Mr Yusuf”). Mr Yusuf came to the UK in the autumn of 2002 and shortly thereafter worked for First Buses at Westbourne Park in West London from 17 October 2002 until 29 May 2003. From 2 June 2003 to 23 March 2004 Mr Yusuf claimed incapacity benefit, but this ceased when he was declared fit to work at the end of that period. Instead of returning to work, however, he left the UK shortly thereafter and subsequently lived in Eastern Europe, before returning to the UK in December 2006. The Borough made the finding, which is not challenged, that in between ceasing work and leaving the UK Mr Yusuf ceased to be “a qualified person” for the purposes of the 2006 Regulations, ie a person with a right to reside in the UK. “A qualified person” means a person who is an EEA national and is in the UK as either a jobseeker, a worker, a self-employed person, a self-sufficient person, or a student (see regulation 6). On his return to the UK in December 2006, Mr Yusuf did not regain the status of “a qualified person” with a right to reside. On his return Mr Yusuf and Ms Ibrahim lived together for a short time, but separated again soon thereafter and she and their children no longer reside together with him.

[8]Ms Ibrahim came to the UK with the permission of the immigration authorities in February 2003 in order to join her husband. They have four children, all of whom are Danish citizens. In October 2007 their ages ranged from 9 to 1. The three older children came to the UK with their mother in February 2003. The fourth child was born in the UK. The two eldest, Abdirahman and Abdifatah, started in state education shortly after their arrival in the UK, and remain in such education.

[9]Following her husband’s departure from the UK in 2004, Ms Ibrahim separated from him. She was not and is not self-sufficient. She does not work and relies entirely on means-tested benefits to pay her basic living expenses and housing costs. She has no comprehensive medical insurance and is reliant upon the National Health Service (NHS).

[10]In January 2007 Ms Ibrahim applied to the Borough for homelessness assistance for herself and her children. She did not and does not wish her husband to be included in her application. She and her husband remain separated. As of the date of the review of her application (which concluded with Ms Hunnisett’s decision of 29 March 2007), Mr Yusuf had not engaged in any kind of employment and was and is reliant upon state benefits.

The relevant EC Law

(i) The EU Treaty

[11]Article 18.1 of the EU Treaty provides: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down by this Treaty and by the measures adopted to give it effect.” (ii) The 1968 Regulation

[12]This Regulation, which is directly applicable, regulates the freedom of movement of workers within the Community. The relevant articles are 1, 10, 11 and 12. Articles 10 and 11 were repealed by the 2004 Directive, but article 12 still survives. It is relevant to observe that there is no express requirement of self-sufficiency in the provisions relating to workers. “Article 1 1. Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals governing the employment of nationals of that State. 2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as the nationals of that State. Article 10 1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse. 2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes. 3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States. Article 11 Where the national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of his children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of the same State, even if they are not nationals of any Member State. Article 12 The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.” As indicated above, articles 10 and 11 have been repealed by the 2004 Directive, but article 12 has not. (iii). The (Echternach and) Moritz decision (15 March 1989)

[13]In GBC Echternach and A Moritz v. Netherlands Minister for Education and Science Joined Cases 389 and 390/87, [1989] ECR 723, Mr Moritz was a student of German nationality who had gone to live with his parents in the Netherlands in 1972, when he was 5. His father remained employed in the Netherlands until posted to Germany in 1985. He returned with his parents to Germany, but found himself unable to continue his education there since his Netherlands certificate of education was not recognised. He therefore returned to the Netherlands and re-enrolled there. He was over 21. He was granted a residence permit, but refused study finance on the basis that he was not to be treated in the same way as a Netherlands student. The question arose whether Mr Moritz had a community law right of residence under the 1968 Regulation which made it unlawful to treat his status in the Netherlands as different from that of a Netherlands student. The ECJ held that he did. It approved the Commission’s arguments, which included the following at para 70 of the Report for the Hearing (at page 737):

“With regard to the Moritz case, the Commission first considers the scope of Article 12 of the Regulation (EEC) No 1612/68. That provision should be interpreted so as to confer a right on a child who has lived with his parents in a Member State while one of the parents was employed there. The parent’s departure from the Member State does not deprive the child of his rights. The decisive criterion is whether the studies of the child of a former migrant worker are related to his previous residence with his parents in the Member State in question. It is not necessary for the worker to have retained his employment or residence in the host Member State. The derivative right conferred on his children by Article 12 survives even after the father’s death, retirement or return to his country of origin.”

[14]The ECJ upheld those arguments at para 20 of its judgment, commenting that equal treatment as regards benefits granted to members of workers’ families “contributes to their integration in the society of the host country, in accordance with the aims of the freedom of movement for workers”. The Court concluded (at para 23, page 762): “For all those reasons, the answer to be given to the national tribunal must be that a child of a worker of a Member State who has been in employment in another Member State retains the status of a worker’s family within the meaning of Regulation No 1612/68 when that child’s family returns to the Member State of origin and the child remains in the host State, even after a certain period of absence, in order to continue his studies, which he could not pursue in the State of origin.” (iv). Directive 90/364/EEC

[15]Among other measures regulating residence prior to the adoption of the 2004 Directive was Directive 90/363/EEC (the “1990 Directive”). The recitals included the following:

“Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State”, and article 1.1 provided: “Member States shall provide the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their family as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.”

[16]This provision has been referred to as the “self-sufficiency” provision relating to rights of residence. The Borough and the Secretary of State submit that considerations of self-sufficiency are inherent in this area of Community law. Ms Ibrahim submits that self-sufficiency is not a condition of a worker’s (and his or her family’s) right to residence in a host member state and that the purpose of the 1990 Directive was to broaden rights of residence beyond those which had already been granted, but subject to a condition of self-sufficiency.

(v) The Baumbast decision (17 September 2002)

[17]In Baumbast and R v. Secretary of State for the Home Department

Case C-413/99

[2002] ECR I-7091

, the Baumbast daughters were in primary education in the UK. Their father, Mr Baumbast, was a German national who had come to the UK to work as a self-employed person. Their mother, Mrs Baumbast was a Colombian national. They married in the UK in 1990. One daughter was Colombian and the other had dual German and Colombian nationality. In 1993 Mr Baumbast left the UK (on the failure of his company) and had been employed in China and Lesotho since then. He had never worked again in the UK although he had from time to time sought work there. The couple owned a house in the UK on a mortgage, and the family had no recourse to public funds, had comprehensive medical insurance in Germany and travelled there for medical treatment if necessary. In 1995 and 1996, Mr and Mrs Baumbast applied for indefinite leave to remain in the UK. (See the Court’s judgment at paras 16/20, at pages I-7145/6.)

[18]The Court was asked three questions. The first related to the children: and enquired whether children of a migrant worker in a host member state were entitled to remain there to further their education pursuant to article 12 of the 1968 Regulation, despite the fact that the worker parent had ceased to work in the host country (and despite other matters affecting the family, such as divorce, or the absence of any community citizenship within the family other than that of the ex-worker: the question of divorce arose in the conjoined case of R, where the migrant worker continued to work in the UK but was divorced from the child’s mother). The second related to their primary carer: and enquired on a similar basis, and on the assumption that the children did have such a right to reside, whether their primary carer (such as a mother) had a right to reside with the children. The third related to Mr Baumbast himself: and enquired whether he had a directly effective right to reside under article 18 of the EC Treaty in a host country where he had ceased to be a migrant worker; and if so whether his wife and children enjoyed derivative rights of residence.

[19]The Court answered “Yes” to all three questions. In the light of these answers, the Court felt it unnecessary to answer the second part of the third question (relating to derivative rights).

[20]In his opinion, Advocate General Geelhoed considered that Community legislation had not kept pace with changing circumstances, and contained lacunae which the Court had to address: see paras 34, 87/88 and 94. He recommended building on the decision in Echternach and Moritz, which dealt with the situation where the migrant worker had left the host country where he had been working.

[21]In relation to the first question, the Court agreed with the Advocate General in finding assistance in the decision in Echternach and Moritz (see paras 51 and 53), and reasoned as follows:

“56. As to whether the fact that the children are not themselves citizens of the Union can affect the answer to the first question, suffice it to state that, under Article 10 of Regulation 1612/68, the descendants of a Community worker who are under the age of 21 or are dependants, irrespective of their nationality, are to be regarded as members of his family and have the right to install themselves with that worker and that, accordingly, they have the right to be admitted to the school system in accordance with Article 12 of that regulation. 57. Furthermore, the right of ‘his spouse and their descendants who are under the age of 21 years or are dependants’ to install themselves with the migrant worker must be interpreted as meaning that it is granted both to the descendants of that worker and to those of his spouse. To give a restrictive interpretation to that provision to the effect that only the children common to the migrant worker and his spouse have the right to install themselves with them would run counter to the aim of Regulation No 1612/68 noted above… 63. In the light of the foregoing, the answer to the first question must be that children of a citizen of the European Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation 1612/68. The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard.”

[22]The parties in this appeal have debated whether the essence of this reasoning is to find in the 1968 Regulation’s article 10 or (by implication) solely in article 12 the right to reside in order to vindicate the child’s right to access to education which is the express subject matter of article 12.

[23]On the basis of its answer to the first question, the Court implied a derivative right of residence for the children’s primary carer. The Court reasoned the matter as follows:

“71. In circumstances such as those of the main proceedings, where the children enjoy under article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parents who are their carers are at risk of losing their rights of residence as a result, in one case of a divorce from the migrant worker and, in the other case, of the fact that the parent who pursued the activity of an employed person in the host Member State as a migrant worker has ceased to work there, it is clear that if those parents were refused the right to remain in the host Member State during the period of their children’s education that might deprive those children of a right which is granted to them by the Community legislation. 72. Moreover, in accordance with the case-law of the Court, Regulation No 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention. That requirement is one of the fundamental rights which, according to settled case-law, are recognised by Community law… 73. The right conferred by Article 12 of Regulation 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that the child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies… 75. In the light of the foregoing, the answer to the second question must be that where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of nationality, to reside with them in order to facilitate the exercise of that right notwithstanding that the parents have meanwhile divorced or that the parent who has the status of the citizen of the European Union has ceased to be a migrant worker in the host Member State.”

[24]Finally, as for the third question, the Court found in article 18(1) of the EC Treaty, coupled with Mr Baumbast’s family’s essential self-sufficiency, the basis of his right to reside in the UK, despite having ceased to be a worker there. It was true that the 1990 Directive’s article 1(1) required a Community citizen who sought to exercise his right of residence thereunder in a host member state to hold cover for himself and his family for sickness insurance in the host country, and that in this respect Mr Baumbast lacked the necessary cover in the UK. However, his family was covered by comprehensive sickness insurance in Germany, so that in practice all that his family lacked in the UK was emergency sickness cover. The essential principles at work were that beneficiaries of such a right of residence should not become an “unreasonable” burden on the public finances of the host country (see the preamble to the 1990 Directive), and thus a principle of proportionality had to be applied. The Court therefore concluded:

“93. Under these circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right. 94. The answer to the first part of the third question must therefore be that a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality. 95. By the second and third parts of the third question, the national tribunal seeks to ascertain whether, if Mr Baumbast enjoys a right of residence on the basis of Article 18(1) EC, the members of his family enjoy rights of residence on the same basis. In the light of the answers given to the first two questions, it is not necessary to answer those parts of the third question.”

[25]The parties to this appeal dispute the relevance of the principles of self-sufficiency and proportionality to the right of Ms Ibrahim’s elder children in school and of Ms Ibrahim herself as their primary carer to reside in the UK. On behalf of Ms Ibrahim it is submitted that the first two questions in Baumbast were answered without any reference to those principles. On behalf of the Borough and the Secretary of State it is submitted that the facts of self-sufficiency were part of the essential facts of that case and cannot be ignored.

(v) The 2004 Directive

[26]As the travaux préparatoires of the 2004 Directive demonstrate, this Directive was under consideration both before and after the Baumbast decision. In the event, the 2004 Directive took account of both Echternach and Moritz and Baumbast. However, it is also clear that the 2004 Directive, which repealed much of previous legislation concerning rights of residence, including articles 10 and 11 but not article 12 of the 1996 Regulation, was intended to cover this field with a new codification, contained in a single legislative act. We cite relevant extracts from its preamble: “Whereas… (3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens. (4) With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend Council Regulation (EEC) No 1612/68…and to repeal the following acts… (10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions… (15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis. (16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance scheme of the host Member State they should not be expelled. Therefore an expulsion measure should not be the automatic consequence of recourse to the social assistance system… (3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens. (4) With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend Council Regulation (EEC) No 1612/68…and to repeal the following acts… (10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions… (15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis. (16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance scheme of the host Member State they should not be expelled. Therefore an expulsion measure should not be the automatic consequence of recourse to the social assistance system…

[27]The relevant provisions of the articles of the 2004 Directive are as follows: “Article 1 Subject This Directive lays down(a) the conditions governing the exercise of free movement and residence within the territory of the Member States by Union citizens and their family members;… (c) the limits placed on the rights set out in (a)…on grounds of public policy, public security to public health… Article 2 Right of residence for more than three months Subject This Directive lays down (a) the conditions governing the exercise of free movement and residence within the territory of the Member States by Union citizens and their family members;… (c) the limits placed on the rights set out in (a)…on grounds of public policy, public security to public health… Article 2 Right of residence for more than three months 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 self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislative or administrative practice, for the principal purpose of following a course of study, including vocational training; and - have comprehensive sickness insurance cover in the host State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph (a), (b), or (c). 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporally unable to work as a result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of status of worker shall require the training to be related to the previous employment… Article 12 Retention of the right of residence by family members in the event of death or departure of the Union citizen 1. Without prejudice to the second paragraph, the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down as points (a), (b), (c) or (d) of Article 7(1)… 3. The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies… Article 14 Retention of the right of residence 1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein…

[28]Article 12.3 of the 2004 Directive, in the context of that Directive as a whole, is a critical provision in the current appeal. It appears to reflect the considerations of the Echternach and Moritz and Baumbast decisions, but Ms Ibrahim acknowledges that she cannot rely on it because it contains what she describes and accepts as a lacuna: it does not protect the family of the ex-migrant worker, such as Mr Yusuf, who has ceased to be such a worker before departure from the host member state. Instead she therefore relies on the surviving article 12 of the 1968 Regulation itself, as broadly interpreted in Baumbast. The Borough and the Secretary of State, however, submit that the 2004 Directive is intended to be a complete code, and that the fact that the case of Ms Ibrahim and her children does not fall within it is decisive. They also submit, based on the overall provisions of the Directive, that, outside the case of the migrant worker and his/her family itself, the requirement of self-sufficiency is pervasive and applies to this case.

The implementation of the 2004 Directive in UK law by means of the 2006 Regulations

[29]The 2006 Regulations are made under section 2(2) of the European Communities Act 1972 and section 109 of the Nationality, Immigration and Asylum Act 2002, and give effect to the 2004 Directive. The regulations are written in terms of a “qualified person”, defined in regulation 6 as a person who is an EEA national and in the UK in one of a number of capacities, such as job-seeker, worker, self-employed person, self-sufficient person, and student. A person may be removed from the UK if he is not, or has ceased to be, a qualified person (regulation 19(3)(a)).

[30]It is unnecessary to set out the provisions of the 2006 Regulations at any length, for it is common ground that(i) the 2004 Directive is correctly implemented into UK law by means of the 2006 Regulations; and

(ii) the 2006 Regulations, like the 2004 Directive itself, are not in any event the source of Ms Ibrahim’s rights.

[31]It is sufficient therefore to observe that the effect of article 12 of the 2004 Directive is to be found in regulation 10 of the 2006 Regulations, and that for present purposes the critical provisions are in regulation 10(3) and (4) as follows:

“10. (1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5)… (3) A person satisfies the conditions in this paragraph if – (a) he is the direct descendant of – (i) a qualified person who has died; (ii) a person who has ceased to be a qualified person on ceasing to reside in the United Kingdom; or (iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse of civil partner of the person mentioned in sub-paragraph (ii); and (b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course. (4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).”

The Housing Act 1996

[32]It is unnecessary to set out the detailed provisions of the UK’s Housing Act 1996 and the relevant regulations made under it, the Allocation of Housing and Homelessness (Eligibility) Regulations 2006, for the parties are in agreement about their effect.

[33]In brief, Ms Ibrahim is not eligible for housing assistance if she is a person from abroad who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996, unless she is of a class prescribed by the Secretary of State. She is not of a class prescribed in regulations prescribed by the Secretary of State. The issue is therefore whether she is “subject to immigration control”. This depends on whether she has a right of residence in the UK which is an enforceable community right, such as a right derived from an EU Regulation (such as the directly enforceable 1996 Regulation) or a right derived from any provision made under section 2(2) of the European Communities Act 1972 (such as the 2006 Regulations giving effect to the 2004 Directive).

The Borough’s and the Secretary of State’s submissions

[34]On behalf of the Secretary of State, Mr Clive Lewis QC has made the following submissions, which Mr Kelvin Rutledge has supported on behalf of the Borough.

[35]Since its promulgation the 2004 Directive is the sole source of conditions governing rights of residence in member states for citizens of the EU and for members of their families (and those rights have been effectively and accurately transposed into English law by reason of the 2006 Regulations).

[36]That is clear from the preamble to the 2004 Directive, and is supported by consideration of its travaux préparatoires which demonstrate that it was the intention of the drafters of the 2004 Directive to incorporate the Baumbast decision of the ECJ within the conditions laid down in the 2004 Directive. That in turn reflects the opinion of Advocate-General Geelhoed delivered in Baumbast that Community legislation in the area of workers’ and others’ rights of residence was in need of a comprehensive overhaul.

[37]It is common ground that Ms Ibrahim and her children do not have rights of residence within the UK under the conditions laid down in the 2004 Directive, see in particular article 12(3) (or under those same conditions accurately and effectively transposed into UK law by reason of the domestic 2006 Regulations). This is because the husband and father, Mr Yusuf, had ceased to be a worker in the UK before he departed from the UK in 2004.

[38]Recorder Hochhauser had been wrong to accede to the submission made on behalf of Ms Ibrahim that the 2004 Directive had nevertheless left untouched article 12 of the 1968 Directive and the Baumbast decision based upon it, and that therefore an ex-worker’s children in education, together with their primary carer, still retained their previous status with its right of residence in the host member state. Article 12 of the 1968 Regulation was the source of a worker’s child’s right of access to education in the host member state, but upon the repeal of the 1968 Regulation’s article 10, which was the source of rights of residence under the Regulation, its article 12 right of access to education was now subject to the altered conditions laid down in the 2004 Directive. Those laid down that a Union citizen’s family only retained a right of residence for the purpose of access to education upon the ceasing of the worker’s right of residence if the worker’s right of residence had ceased on death or departure.

[39]In any event, any retained right of residence for the family, after the Union citizen’s departure from the host member state, must itself depend on their self-sufficiency. The principles of self-sufficiency and proportionality were essential principles of Community law, to balance the needs of the citizen and the state. The condition of self-sufficiency was not required of the migrant worker and his family, but it was a condition of any other form of right of residence, as inter alia article 7 of the 2004 Directive made clear. In Baumbast the family was self-sufficient, and although that was not expressly relied upon in the reasoning of the ECJ in its answers to questions one and two, as distinct from question three, nevertheless those were the facts of the case and it would be wrong in principle to derive any wider principle from it such as would validate Ms Ibrahim’s claim given her lack of self-sufficiency.

[40]In sum, it was impossible to find in the terms of the 2004 Directive, and it would be wrong in principle to derive from article 12 of the (now amended) 1968 Regulation or from Baumbast (dealing with the unamended 1968 Regulation) a general rule under which a migrant worker’s children of school age, once enrolled upon their education however briefly, could, together with their primary carer, retain a right to residence for the whole period of their education in the host member state of an ex-worker, however brief his sojourn there as worker and despite the absence of self-sufficiency.

Ms Ibrahim’s submissions

[41]On behalf of Ms Ibrahim, Ms Nicola Rogers submitted as follows.

[42]While it was accepted that article 12(3) did not assist Ms Ibrahim in the present case, that was merely because of a lacuna found there on the particular facts relating to Mr Yusuf, who had ceased to be a worker with a right of residence in the UK before his departure (and had failed to obtain a new right of residence on his return). The presence of that lacuna in the 2004 Directive threw no light at all on the broad principle derived from article 12 of the 1968 Regulation by the ECJ in Echternach and Moritz and Baumbast. The broadness of the rights derived from article 12 by the Court in Baumbast is to be emphasised.

[43]The effect of those two decisions was to derive an implied right of residence from article 12 of the 1968 Regulation itself. In the circumstances, it was irrelevant that articles 10 and 11 of the 1968 Regulation had been repealed by the 2004 Directive. It was more to the point that article 12 had specifically not been repealed.

[44]The fact that the travaux préparatoires of the 2004 Directive demonstrated that it had been intended to encompass Echternach and Moritz and Baumbast in the 2004 Directive only served to emphasise, with the survival of article 12 of the 1968 Regulation itself, that it was necessary to continue to give effect to that article and the decisions founded on it. On the contrary, if it had been intended so to subsume those decisions in the 2004 Directive itself, then it would have been necessary to make that expressly clear, possibly by amending article 12 of the 1968 Regulation itself.

[45]This was particularly the case where the rights of Ms Ibrahim’s children to education in the UK had already accrued, despite Mr Yusuf’s ceasing to work in the UK by the spring of 2004, even before the promulgation of the 2004 Directive on 29 April 2004.

[46]As for the principle of self-sufficiency, there is no requirement of self-sufficiency in the case of a Union citizen who works in a host member state: there had been no such requirement in the past, and there was none in the 2004 Directive (see its article 7(1)(a), as distinct from (b) and (c)). Moreover, there was no requirement of self-sufficiency in the ECJ’s answers to questions one and two in Baumbast. This was emphasised by the fact that the Court did not think it necessary to answer the subsequent parts of question three (see Baumbast at para 95). It was also the opinion expressed by the Second Commission Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence) dated 5 March 2003 itself: see at page 9, under the heading Protection of family life.

[47]Recorder Hochhauser was therefore right to find in favour of Ms Ibrahim’s claim for the reasons which he gave.

[48]In sum, once a Union citizen had come as a migrant worker to a host member state together with his family, that state was required, irrespective of the failure of that citizen’s status as a worker or of the absence of self-sufficiency, to recognise the retained right of residence of children undergoing education there, and that of their primary carer, for as long as the children’s education continued. Whatever the lacuna in the present case so far as article 12(3) of the 2004 Directive is concerned, that provision essentially recognises the same principle in granting retained rights of residency in the case of the departure of a worker, as well as his death.

Reference

[49]In our judgment the issues raised by this appeal are not acte clair and need to be referred to the ECJ. These are important issues on recent Community legislation and also raise a difference of opinion concerning a recent decision of the Court which the 2004 Directive has itself sought to include within its provisions.

[50]In the circumstances, we feel diffident about expressing any view ourselves as to the correct answer to be given in this appeal. We would merely, and briefly, observe as follows.

[51]The factual situation in the present appeal is very different from the four cases encompassed by Echternach and Moritz and Baumbast and R. In the first decision, the student children were themselves adults, indeed above 21. They had spent most of their lifetime in the host countries. In the second decision, the Baumbast family were continuing to reside in their home in the UK, and were stated to be self-sufficient. In R, the migrant worker was still working in the UK and thus plainly maintained his right of residence, and the only issue was that he had divorced.

[52]There has been debate before us as to whether the rationale of Baumbast is that there is an implied right of residence within article 12 alone of the 1969 Regulation. We would be inclined rather to read Baumbast as saying that the implication comes out of a combination of articles 10 and 12 of the 1968 Regulation: article 10 gives the right to children under 21 “to install themselves” in the host member state and article 12 gives the right of access to education there (see Baumbast at paras 56/57). However, article 10 of the 1968 Regulation has now been repealed, and replaced by article 7 of the 2004 Directive. It is not obvious to us that the full rationale of Baumbast survives, and it is arguable that its modern rationale has to take its source from a combination of article 12 of the 1968 Regulation taken together with the 2004 Directive. This seems to us to be supported by the references in the 2004 Directive’s preamble to that Directive as a codification, following review, of this area of Community law, and to the need for a single legislative act.

[53]Article 12 of the 2004 Directive is the modern express source of the retention of the right of residence by family members in the event of death or departure of the Union citizen. The case of death is more straightforward: it is dealt with expressly in preamble (15), and in article 12(2) as well as 12(3). It is understandable that special provision needs to be made for the misfortune of death, which leaves the surviving family, absent any choice, without the family member on whose status as a worker their right of residence depends. The case of departure is more problematical, and has not been foreshadowed in the preamble or the travaux préparatoires. It is suggested on behalf of Ms Ibrahim that Echternach and Baumbast were cases of departure, but we are not sure of that. Echternach was, but in Baumbast the father was still residing in his family home in the UK, even if he also earned his living abroad. In any event, the notion of departure appears to be in essence new to the 2004 Directive. Article 12 of the 1968 Regulation simply speaks of children of a worker who “is or has been employed” in a host member state (see Baumbast at para 54 where that language is emphasised). Moreover, the first question in Baumbast speaks not of a worker who has departed the host member state, but of one “who has ceased to be a migrant worker” there (at para 39). We are therefore uncertain what is the significance of the concept of departure. Why does it matter whether the migrant worker has left to work in another country, or has stayed in the original host country but ceasing to work?

[54]As for the principle of self-sufficiency, we are inclined to agree with Ms Ibrahim (and Recorder Hochhauser) that questions one and two in Baumbast were answered without reference to that principle. But it still remains true that the answers given were against the background of the fact that the Baumbast family were self-sufficient. We observe that article 12(3) of the 2004 Directive does not appear to be expressly premised on the condition of self-sufficiency, even though that principle is expressly mentioned in article 12(2) dealing with death. However, there is a general principle of self-sufficiency outside the case of the worker (see for instance preamble (10)).

[55]In sum, we are sceptical as to whether article 12 of the amended 1968 Regulation and Baumbast in the light of the 2004 Directive do give to the children and primary carer of a worker who has stopped working a right to reside in the host member state to complete an education which has relatively recently begun and to do so despite lack of self-sufficiency, and however briefly the worker has resided as a worker in the host member state.

The referred questions:

[56]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 inthe 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 12ofRegulation (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?