The ECJ ruled on entitlement of benefits in the UK

The European Court of Justice has recently delivered its judgment on a preliminary reference case concerning the interpretation of EU’s laws on freedom of movement for workers within the EU, particularly Article 12 of Regulation 1612/68 and Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. In Case C 310/08, London Borough of Harrow v Nimco Hassan Ibrahim, Secretary of State for the Home Department, the ECJ held that a parent who is the primary carer of a child who is in education have a right of residence in the host Member State, in this case the UK, even if they cannot support themselves without social assistance. Consequently, the ECJ ruling will allow them to become a burden on the UK’s social support system. According to The Telegraph, Harrow Councillor, Barry Macleod-Cullinane, said: "We are very concerned with this outcome, as it appears to establish a major new legal precedent over benefit claims.” Moreover, he stressed “(…) it could well prove to be a floodgates judgment in that people who have not yet contributed to this country or who do not have the means to sustain themselves can now seek immediate help from state welfare services."

The case concerned a Somali national, Ms Ibrahim, married to a Danish citizen, Mr Yusuf, and with four children. Mr Yusuf arrived in the UK in October 2002 and worked here till May 2003. Then, he received incapacity benefits for 10 months, but when declared fit to work he left the UK, returning just in December 2006. Under the Immigration (European Economic Area) Regulations 2006 a ‘qualified person’ is a national of a State of the EEA who is in the UK as a job seeker, worker, self-employed person, self-sufficient person or student, and they are entitled to reside in the UK for so long as they remain a “qualified person.” Hence, Mr Yusuf has ceased to be a ‘qualified person’ when he stopped working and left the UK. Ms Ibrahim separated from her husband after he left the UK in 2004. As the Court noted, Ms Ibrahim has never worked in the UK and completely depends on social assistance. In 2007, the housing assessment officer of the London Borough of Harrow rejected her application for housing assistance on the grounds that under the Housing Act 1996 and the Allocation of Housing and Homelessness (Eligibility) Regulations 2006 neither Ms Ibrahim nor her husband are entitled for housing assistance as they have no right of residence in the UK conferred by EU law. She appealed against this decision to the Clerkenwell and Shoreditch County Court which held that Ms Ibrahim has a right of residence in the UK as she is the mother and primary carer of the children who are attending school and her husband is an EU citizen who worked in the UK. The London Borough of Harrow appealed against this judgment to the Court of Appeal of England and Wales, Civil Division which then made a reference to a preliminary ruling to the ECJ.

Article 12 of Regulation No 1612/68 provides that “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.” In 2002, the ECJ held, in Case C-413/99, Baumbast and R v Secretary of State for the Home Department, that the children of a migrant worker have a right of residence in order to attend educational courses in the host member State, and, in this regard, it is irrelevant that the parents of the children concerned have divorced, 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. According to the Court a refusal to allow the children’s parents who are also their carers to remain in the host Member State during their children’s education may deprive the children of a right which has been granted to them by EU law. Consequently, the ECJ has held that “a 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.”

Then, Directive 2004/38/EC has entered into force and amended Regulation 1612/68. It has repealed Article 10 of the regulation which provided that the family members “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.” Article 7 of Directive 2004/38 now provides that all EU citizens have the right to move and reside in another Member State as workers, self-employed or students or if they “have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State” as well as “comprehensive sickness insurance cover in the host Member State.” There is therefore a right of residence for members of the family of EU citizens who satisfy the abovementioned conditions.

The Court of Appeal asked whether Ms Ibrahim and her children can rely on a right of residence in the UK on the sole basis of Article 12 of Regulation 1612/68 as interpreted by the Court in the Baumbast judgment or whether they can enjoy a right of residence only if they satisfy the conditions defined in Directive 2004/38. Moreover, the referring court asked whether they must have sufficient resources and comprehensive sickness insurance cover in the host Member State.

Article 12 of Regulation 1612/68 has been interpreted by the Court as meaning that “the child can, in connection with his right of access to education, have an independent right of residence” in the host Member State. In fact, according to the ECJ “ the exercise of the right of access to education was not conditional on the child retaining, throughout the period of his education, a specific right of residence under Article 10(1)(a) of that regulation, when that provision was still in force.” The ECJ has held, therefore, that Article 12 of Regulation 1612/68 must be applied independently of the provisions of EU law which regulate the conditions of exercise of the right to reside in another Member State. Moreover, the ECJ has found that the children’s right of residence is independent of that conferred on their parents.

According to the UK Government the conditions to the exercise of the right of residence in the Member States of EU citizens and members of their families are now governed by Directive 2004/38, thus, there is no longer a right of residence derived from Article 12 of Regulation 1612/68. However, the ECJ has pointed out that Directive 2004/38 has repealed Articles 10 and 11 of Regulation 1612/68 but not Article 12 which, according to it “reveals the intention of the European Union legislature not to introduce restrictions of the scope of that article, as interpreted by the Court.” Hence, it provides a right to equal treatment with regard to access to education as well as a right of residence for the children of migrant workers. The Court recalled that Directive 2004/38 is aimed at simplifying and strengthening the right of free movement and residence of all Union citizens. The Court found, therefore, that Article 12 of Regulation 1612/68 and Article 7 of Directive 2004/38 cannot apply to the children of migrant workers as that would have had the effect of subjecting their right of residence in the host Member State to initiate or continue their education to stricter conditions than those which applied to them before the entry into force of Directive 2004/38.

The Court then examined whether the right of residence of children who are in education in the host Member State and of the parent who is their primary carer is conditional on their having enough resources and comprehensive sickness insurance cover in the host Member State. According to the ECJ Article 12 of Regulation 1612/68 “cannot be interpreted restrictively” consequently there is no such condition. The Court recalled its case law, particularly Baumbast and R where it held that “a refusal to allow the parents caring for the children to remain in the host Member State during the period of their children’s education might deprive the children of a right granted to them by the European Union legislature.” Likewise, the right of residence in the host Member State of children who are in education and the parent who is their primary carer is not conditional on self-sufficiency.

The ECJ, consequently, ruled that “the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38” and “without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.” Hence, Ms Ibrahim who has never worked in the UK will be able to claim house as well as other benefits.