Secretary of State for Work and Pensions v IM (IS) [2011] UKUT 231 (AAC)

UKUT-AAC
Secretary of State for Work and Pensions v IM (IS)
[2011] UKUT 231 (AAC) · 2011-05-26
[1]I held an oral hearing of this appeal on 16 February 2011. The Secretary of State was represented by Ms Julia Smyth, a barrister from the Department for Work and Pensions. The claimant was represented by Mr Geraint Thomas, a solicitor from Worcester CAB. I am grateful to them both for their written submissions and oral arguments. At the end of the hearing, Ms Smyth undertook to provide copies of two decisions in immigration cases and details of the Ofsted regulatory regime prior to 2008. I allowed Mr Thomas a chance to comment on those materials. I am grateful to both representatives for their researches, their detailed arguments and for their constructive and co-operative approach to the case. A. What the case is about[2]The issue I have to decide is the stage at which general educational courses begin for the purposes of Article 12 of Regulation 1612/68:
‘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.’
[3]My analysis is only concerned with the English law of education. It does not consider the effect, if any, of the differences in education law in Wales and Scotland. The analysis is also concerned with the position in late 2006 and early 2007. The law has been changed from 2008. B. Background[4]The claimant is Portuguese. She came with her partner to the United Kingdom in February 2002 and worked until some time around the birth of her daughter, Angela, on 30 January 2003. At all material times, Angela’s mother (the claimant) has been her primary carer and her father has been a worker.[5]Angela started at a local pre-school in July 2006, attending first for two mornings a week and then, from September 2006 to July 2007, for four mornings. She started at primary school in September 2007, which is after the time of the decision under appeal.[6]The details provided by Angela’s pre-school are at pages 76 to 81. The information sheet (page 76) is largely about organisational matters and fees, but it refers to imparting ‘skills useful for school’, to ‘messy play’ and to the children being ‘busy learning through play with other activities.’ The school’s operational plan (pages 77 to 80) is more specific on the school’s arrangements and objectives. It refers to play as well as to learning, development and progress. It refers to the curriculum for the foundation stage of education published by the Qualifications and Curriculum Authority and the Department for Education and Skills. It then sets out the early learning goals in respect of:(i) personal, social and emotional development;(ii) communication, language and literacy;(iii) mathematical development;(iv) knowledge and understanding of the world;(v) physical development; and(vi) creative development. The school’s ethos is summed up in these passages:
‘Play helps young children to learn and develop through doing and talking, which research has shown to be the means by which young children think. Pre-School uses the early learning goals and their stepping stones to plan and provide a range of play activities which help the children to make progress in each of the areas of learning and development. In some of these activities children decide how they will use the activity and, in others, an adult lead in helping the children to take part in the activity. In all activities information from the early learning goals and stepping stones has been used to decide what equipment to provide and how to provide it.’ ‘All of our staff see themselves as co-workers with you in providing care and education for your child.’
C. The claim and why it was refused[7]The claimant made a claim for income support on 18 November 2006, after she and Angela’s father had separated. The Secretary of State refused the claim on 29 January 2007. That is the date shown on the decision at page 63. The submission to the tribunal refers to the date of decision as 30 March 2007. That may be the date when it was notified to the claimant. The precise date does not matter for the purpose of this decision. What does matter is the ground on which the decision was based. The decision-maker decided that the claimant was a person from abroad whose applicable amount was nil. The legal basis of that decision was as follows.[8]Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.[9]Section 124(1) of the 1992 Act provides:
‘(1) A person in Great Britain is entitled to income support if- … (b) he has no income or his income does not exceed the applicable amount.’
[10]Section 135 provides:
‘(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit. (2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.’
[11]The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a ‘person from abroad’ is nil.[12]‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The current version provides:
‘ Special cases: supplemental – persons from abroad 21AA. —(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. (2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3). (3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following— (a) regulation 13 of the Immigration (European Economic Area) Regulations 2006; (b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is— (i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or (ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; (c) Article 6 of Council Directive No. 2004/38/EC; or (d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland). (4) A claimant is not a person from abroad if he is— (a) a worker for the purposes of Council Directive No. 2004/38/EC; (b) a self-employed person for the purposes of that Directive; (c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive; (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive; (f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to— (i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or (ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation"); (g) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; (h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971; (hh) a person who has humanitarian protection granted under those rules; (i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or (j) a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.’
[13]Those provisions applied like this: · If the claimant fell within regulation 21AA(4), she was not a person from abroad and was potentially entitled to income support. However, she did not come within any head of paragraph (4). · In order to be entitled to income support, she had to be habitually resident (regulation 21AA(1)), which she undoubtedly was. · However, she would be deemed not to be habitually resident unless she had a right to reside (regulation 21AA(2)). As she did not, she was a person from abroad with an applicable amount of nil. That is why her claim was refused. If she had a right to reside by virtue of Article 12, she would have been entitled to income support, subject to her satisfying the conditions of entitlement. D. why The appeal to the appeal tribunal was it was allowed[14]The tribunal allowed the claimant’s appeal. The chairman explained her reasoning in her written reasons:
‘It seems to be accepted in cases such as Baumbast and Ali that primary education suffices where the right of access to a General Education System is considered. There is no indication of the age that primary education for these purposes begins. In the UK full-time primary education now begins at a much younger age than in some other EU countries but I consider that what is relevant is the education system of the particular country in which the EU citizen resides and where the child is being educated: in this case it is the UK. Angela’s education at the time of her mother’s claim to Income Support was the full-time free nursery education which is part of the primary education and now an established part of the General Educational System. Under the principles established in the case of Baumbast therefore [the claimant] has a right to reside. It is not disputed that she is the primary carer for Angela.’
[15]The tribunal gave the Secretary of State permission to appeal to the Upper Tribunal. I now have to explain why the tribunal’s decision was wrong in law. E. analysis[16]I was not referred me to, and I have been unable to find, any caselaw on the meaning of ‘general educational … courses’ or on the age at which the right to education begins. That is what I have to decide. Rather than set out the detailed arguments presented by the representatives, I have decided to set out my analysis with references as necessary to the arguments put to me.[17]I have decided that the right under Article 12 arises when a child enters compulsory education at around the age of 5. The State only accepted responsibility for a child’s education from compulsory school age: section 7 of the Education Act 1996. Children reach that age on 31 st March, 31 August or 31 December, depending on when they attained the age of 5. Children are subject to compulsory education from that date. In practice, they might begin that education sooner, depending on local arrangements. That is why I say around the age of 5.[18]Ms Smyth did not argue that compulsion was an essential feature of such a course. I accept that, because as she conceded educational courses are available after the compulsory school age of 16 and are within Article 12. It is simply that the start of compulsory education coincided with the provision of education in the form of a course within the meaning and intendment of Article 12. The language of Article 12[19]Article 12 refers to the State’s general educational courses. That reference precludes a common meaning across all States. The application of Article 12 depends on what amounts to the general educational courses of the particular host State. On that issue, the tribunal was correct.[20]I read ‘general’ as qualifying ‘educational … courses’ and distinguishing them from ‘apprenticeship and vocational training courses’. It relates to the nature of the course rather than the breadth of attendance on a course or its popularity. Accordingly, I reject Mr Thomas’ argument that the 96% take up of pre-school classes is significant.[21]The word ‘courses’ is important. All children are subject to chance and change in their education. They will have to move from school to school according to their age. They may or may not secure a place at a school of their parents’ choice. They may have to move school as their parents move around the country. And there is always the chance that the system will be changed fundamentally, as it was when the national curriculum was introduced. Article 12 does not protect a child from these eventualities. It requires only that the children of migrant workers are admitted equally with any other children to the courses that are provided. They have to accept the chance and change like everyone else. The rationale for Article 12[22]By its terms, Article 12 provision is concerned with equality of access to, and continuity of, a child’s education. Its broader purpose emerges from its context as analysed by the European Court of Justice.[23]The ninth paragraph of the preamble provides the context of that right: ‘Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’.[24]In a series of cases, the Court has derived a right to reside for the child’s primary carer in order to make effect the child’s right to education. The key authorities are: Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091 ; London Borough of Harrow v Ibrahim (Case C-310/08); Teixeira v London Borough of Lambeth (Case C-480/08). Those cases decide that the primary carer of a child has a right to reside if the child was in education at any time when one of her parent’s was a worker. The carer does not need to be self-sufficient or have comprehensive sickness insurance in the United Kingdom.[25]The decisions I have cited, and others, identify the two underlying but linked policies that emerge from the ninth paragraph of the preamble. First, it might deter freedom of movement if a migrant worker’s children were not admitted to the education system of the host State. Second, freedom of movement to be effective must involve integration of the migrant worker’s family, of which admission to education is an important part. These policies are linked by the possibility that the disruption to children’s education might deter a worker from moving to another State. I do not need to provide citations for these propositions, as they were not in dispute.[26]These policies provide the rationale for the provision. They are not, though, conditions of its operation. For example: the right arises on the child’s first day in education. If it were necessary to move to another country after a week, there would be no significant interruption to education or deterrence to the worker’s freedom of movement. Article 12 is therefore wider than is strictly necessary to fulfil the policies that I have identified. That is not unusual or surprising; the terms in which laws are drafted often do not coincide with their rationale. This does not affect the operation of the rule, but it is significant for its interpretation. As it is already much broader than is necessary to attain its underlying purposes, it may not be appropriate to extend it further. No general right to reside for children and their carers[27]EU law does not confer a right of residence on all children and their carers. But the argument for the claimant would come close to producing that effect. Our understanding of education, of the role of play in learning, and of the integration of child care and learning have all changed. As a consequence, it is now accepted that children begin to learn from birth and education is not separable from play and care. On the claimant’s argument, a child would acquire a right to education under Article 12 at an age that would be inconsistent with the nature of the Article. A bright line[28]Article 12 draws a bright line at the point when a child enters education. Regardless of when that happens, the Article includes cases in which a child’s education would not be affected by a move to another State and a parent would not be deterred from exercising freedom of movement by the possibility of such disruption. The impact of a move is fact sensitive and a matter of degree, but a bright line has been drawn, no doubt for convenience of application. On the approach I have taken, there is a clear point at which Article 12 begins to apply. By drawing the line in that place, Article 12 includes every case in which it is conceivable that a move from one State to another might be detrimental to a child’s education or be likely to deter a parent from exercising freedom of movement. By drawing the line in that place, there will be no adverse impact on the objectives for which the Article was established. It is true that Angela’s pre-school arrangements did help her to integrate into the community, but Article 12 is not concerned directly with integration, only with integration through education.[29]Compulsory school is not a purely random age. It is fixed for a particular State on the basis of that State’s policy on education and it marks, in this country at least, a point at which education predominates over mere childminding and care. It is a suitable point at which to draw a line that gives a right to education.[30]It also represents a transition in State provision. After that age, there is a duty on parents and the State to provide education for a child. Before that age at the time with which I was concerned, local authorities were under a duty only to secure that there was sufficient nursery education for their area: section 118 of the School Standards and Framework Act 1998. It was for the authority to decide how this provision might be arranged. Parents were able to take as much or little of what is available as they wish. Compulsion marks a distinction from compulsory education, which parents are not at liberty to pick and choose as they wish. From the start of compulsory education, there is a cohesion in the nature of the educational provision that is lacking in the earlier provision. It is this sort of education that justifies the long-term, continuing protection given by Article 12 rather than the equality of access given to, for example, social advantages by Article 7(2). A social advantage[31]I should record that Ms Smyth suggested (without conceding) that the right to access to pre-school provision might be a social advantage, but that is not enough to found a right to reside for the child’s carer. F. Directive 2004/38/EC[32]Article 12(3) of this Directive codifies Baumbast :
‘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.’
[33]I do not find it helpful to compare the wording of that provision and Article 12 of Regulation 1612/68. Ms Smyth argued that the Directive could not be narrower in its meaning that the Regulation, but I am not so sure. My reading of the Directive is that it:(i) consolidated previous legislation;(ii) codified a number of decisions of the European Court of Justice; and(iii) extended some of the legislation and decisions. It certainly codified Baumbast and extended it to include the death of the worker. However, as with other codifications, it did so by specific reference to the facts of the cases. It did not attempt to identify a general principle on which the caselaw was based. If my understanding is correct, it is not possible to draw general conclusions about the scope of the Regulation from the precise wording of the Directive. G. immigration decisions[34]I was referred to some immigration decisions. With respect to the judges concerned, I do not find them useful as the judges did not have the detailed arguments that I have received on the issue. H. CIS/3960/2007[35]This is my decision, in which I considered whether the Baumbast line of authorities applied to nursery education. I decided that they did not. ‘19. The question asked of the European Court of Justice in Baumbast concerned a child who entered primary education. The Court’s answer was framed in those terms. In this case, the claimant’s son had not entered primary education while she was a worker. He had started at nursery. That nursery was attached to a mainstream school, but he was not entered into that school. He had not started education. In those circumstances, Baumbast does not apply.20. I have considered whether, apart from the precise wording of the questions and answers in that case, the principle applied by the Court applies here. I consider that it does not. The Court was concerned to preserve the continuity of education that is the child’s right under Article 12 of Regulation 1612/68. Disruption of education can be detrimental to a child’s development and future career. However, the same is not true of nurseries. They may be attached to schools, but they often are not and the child has to be moved to enter primary education, with inevitable disturbance to the continuity that can be provided between nurseries and schools that are linked.21. I note the tribunal’s comment that a nursery can help a child to develop skills that will make the most of education. However, that merely emphasises that the child is not yet in education.’[36]That decision was made without the benefit of the benefit of the arguments I have heard in this case. Although I have decided that my conclusion was right, although my reasoning is now rather different. I. why i did not refer a question to the European Court of Justice[37]I decided not to refer a question to the European Court of Justice for two reasons. First, I was unable to formulate a question that would provide a useful answer. The answer would inevitably leave the application to the individual member State, with perhaps only the most general of guidance. Second, the domestic law that is relevant to this decision has since changed. J. The effect of my decision[38]I have set aside the tribunal’s decision and restored the decision of the Secretary of State that was under appeal. The effect is that the claimant was not entitled to income support on her 2006 claim. Signed on original on 26 May 2011 Edward Jacobs Upper Tribunal Judge

Cited in 2 later judgments