PFA Former worker with child in education

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  • #34924
    Beard
    Participant

    Interesting one, this.

    Claimant is an A8 national who has resided and worked here legally for 12 months, and therefore acquires the same rights of residence for benefit purposes as an EEA national.

    The appeal I have received suggests that she has rights of residence on the basis that she is a former worker who has a dependant child.

    This refers to Article 12(3) of directive 2004/38.

    I am not certain this is applicable, because there’s ‘no death or departure of a union citizen’

    I’d be interested in anyone else’s opinions.

    #98225
    Anonymous
    Guest

    I think the appeal is confusing two things.

    Article 12 of the Directive (which you can see in the legislation area on this site) is there to protect family members whose right of residence was derived from someone else’s economic status, and that someone else has now died or left the country. Your claimant is not in that position, because she was not here asa family member to start with.

    The appellant is probably thinking about the Baumbast case, as a result of which a child’s primary carer has a right of residence if:

    – the child entered education in the host state while its parent was a worker there, and
    – the parent is no longer a worker in the host state (in Mr Baumbast’s case, his German employer sent him on business outsde the EU, so he no longer had any work-related ties with the UK where he has previously been a worker), and
    – the child is continuing in education.

    In both of the cases decided in the Baumbast appeal (there was another appellant who was an American divorced from a French worker in the UK) the person looking after the child was not the worker from whose work the child opriginally derived its right to education: in both cases, the worker had left the scene and their spouse (or ex-spouse in the American case) was left high and dry.

    In your case, it’s a bit circular: child derives right to reside from worker, worker ceases to be worker but derives right to reside from child. Nevertheless, I think the following extract from Baumbast would support the parent having a right to reside even if she is the same parent who was originally the worker upon whom the child depended for its own right of residence and education:

    “[i:0c8066541d]73. The right conferred by Article 12 of Regulation No 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 that 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. To refuse to grant permission to remain to a parent who is the primary carer of the child exercising his right to pursue his studies in the host Member State infringes that right.

    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 his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.”
    [/i:0c8066541d]

    Of course, all of that assumes that your claimant’s child did enter education while she was still a worker. If t didn’t, then I don’t think she could rely on either Baumbast or Article 12.

    #98226
    Beard
    Participant

    Thanks Peter.

    You thinking is very much on the lines of my own and I will almost certainly allow the appeal.

    #98227
    Beard
    Participant

    [quote:bd6656386b=”Peter Barker”]I think the appeal is confusing two things.

    – the child entered education in the host state while its parent was a worker there, and
    – the parent is no longer a worker in the host state (in Mr Baumbast’s case, his German employer sent him on business outsde the EU, so he no longer had any work-related ties with the UK where he has previously been a worker), and
    – the child is continuing in education.

    .[/quote:bd6656386b]

    I have another case that is similar to this and have a small point to clarify.

    Does the parent have to actually be working when the child takes up education, or can they merely be in this country seeking work ?

    My own viewpoint is the latter as in Baumbast it states that :

    ‘children of a citizen of the European Union who have installed themselves in a Member state during the exercise by their parents of rights of residence as a migrant worker’

    That suggests to me that the condition is that they are here as a migrant worker and might either be working or seeking work.

    I’d appreciate others thoughts.

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