Right to reside/HRT and the BAUMBAST case

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  • #34939
    Anonymous
    Guest

    Right to reside/HRT

    I’m useless at these; to be honest any help would be greatly appreciated especially if you can enlighten me with a technical/legal justification to support your comments… (Because, quite frankly, I’m completely confused!)

    Scenario:-

    Polish national who has worked in this country quite happily for the last 2 years (having lived in the UK since at least 2004).

    Subsequently her husband leaves her and she is forced to give up her job (as he was caring for their 6 year old daughter whilst she was at work).

    She was advised by DWP to claim IS as a single parent despite the fact that she wanted to find work and was actively seeking employment (she was not advised to claim JSA).

    She claimed HB on time

    She was not awarded IS (this decision is currently under appeal).

    The HB claim was turned down based on Habitual Residency and the right to reside etc…

    CAB are now challenging the decision saying that she clearly has a right to reside in the UK and quotes the ‘Baumbast’ case in support of this (this angle is being used to challenge the IS decision).

    CAB maintains she satisfies the original HR test (the claimant had a permanent intention to settle here and has been in this country for 3 years. Her child is in settled education and was in a nursery prior to commencing school last year.) The CAB officer again refers to ‘Baumbast’ stating that she has a right to reside and does not need to be a worker…with me so far?

    CAB also quotes Directive 2004/38…and EC regs 1612/68 which gives children of former workers (and their primary carers) the ‘right to reside’ if they’re currently in the education system (the aforementioned Baumbast case). Therefore the CAB maintains that there is no issue with respect to the claimant actively seeking work under this directive.

    So, can we consider Housing Benefit in this case?

    Personally, I want to grant the benefit as I think this woman has fallen on hard times through no fault of her own and was economically independent until the point when her marriage breakdown forced her to quit due to child care issues.

    Can anyone help?

    #98269
    Anonymous
    Guest

    Does Baumbast apply? Yes with a caveat.

    Baumbast is actually two appeals in one: Baumbast and “R” were both heard together. In both cases, the relevant person was the non-working spouse of a European worker who for one reason or another was no longer able to rely on that status (Mr Baumbast was no longer working in the UK because his German employer had sent him elsewhere, while Mrs “R” was divorced from her French husband.)

    In both cases, the parent with care of the kids derived a so-called “parasitic” right to reside because the children had entered education as the child of a worker and had the right to continue their education, and clearly they needed a parent to look after them so that was where Mrs Baumbast and Mrs R got their right of residence.

    I think the basic principle probably holds good in your case. The caveats are:

    – the child is young, would it really be so awful if it had to move to a school in Poland? It’s not like vital course work would be disrupted. I am not saying this is my view, I am just flagging up a distinguishing feature that might set Baumbast apart.

    – the worker from whose employment the child derived its right to education is now the same parent who is after a parasitic right derived from the child … a bit circular, sort of disappears up its own directive. In Baumbast, neither Mrs B nor Mrs R was the original worker. Directive 2004/38 caters for most cases that match Baumbast exactly, but not those cases where the original worker is now the parent with care. Significant? Maybe not, but another distinguishing feature.

    – Finally, your claimant is Polish and therefore was not a fully-fledged EU worker for the first year. But as long as she had made the step up to bog-standard European worker (and I think she did after 12 months) before giving up work, I think she should be OK.

    In conclusion, I would give a tentative yes to this claimant.

    #98270
    Anonymous
    Guest

    thanks Peter..much appreciated..I was really stuck on this one….

    #98271
    Anonymous
    Guest

    Ressurecting an old thread as I have a similar case on my desk…

    A Polish couple were living in UK since 2006, the husband was a self-employed builder and paying all their bills. In Nov 2007 the husband was sent to jail in Poland so he is no longer a worker. In Dec 2007 wife claims HB/CTB, which we initially refuse. They have two children, aged 8 and 9, and the CAB argue that the wife has a right to reside because she is the parent with custody of children who retain a right to reside as family members of a departed Union citizen.

    I’m looking at Baumbast and CIS/3444/2006. Mrs Baumbast was not seeking public assistance but retained the right of residence through her children’s right to education. However in CIS/3444/2006 Cmmr Rowland says “the requirement for a child to change schools is not necessarily inconsistent with a child’s right to a proper education”.

    Does the fact that the father would have had to leave work before he went to prison mean he was no longer excerising his right of free movement as an EU worker, which precludes his children retaining a right to reside under Article 12 of Directive 2004/38/EC?

    In my case the parent with custody has never been a worker and she certainly is not self-sufficient. Initially I wanted to pay but now I’m having doubts. Any thoughts?

    #98272
    Anonymous
    Guest

    Had some advise from the DWP on this case:

    [quote:fa960ad377]A self-employed A8 and also self-employed EEA nationals, don’t have worker status so when they stop being self-employed they are jobseekers not people who retain their worker status….

    Whilst an A8 national is self-employed they have a right to reside as do their family members which allows them to claim benefits. However, they don’t get full EEA national status even if they have worked for 12 months in a self-employed capacity. So when they stop working they are subject to the Accession regulations which means that they must be self-sufficient while they look for work or they no longer want to work or can’t work. This means that the family members of self-employed A8 nationals only have a right to reside (for benefit purposes) whilst the A8 national is working and must be self-sufficient if the A8 national stops working or as in this case, leaves the UK.

    Therefore, your customer doesn’t have a right to reside or retain a right to reside because her husband was previously self-employed. Even if her husband had been a worker before he left the UK she would still only have had a right to reside / retain a right to reside if she is self-sufficient. The rights for family members of former workers who have died or left the UK (if they have been here for less than 5 years) only gives them a right to live here if they are self-sufficient until they have lived here for 5 years.[/quote:fa960ad377]

    My understanding is this: if the partner leaves the country to continue working on a self-employed basis, his family in the UK can retain their right of residence if the children are in education. However in my case he ceased to be self-employed when he was arrested, therefore he was no longer a qualified person when he left the UK and his family cannot retain a right of residence. Any thoughts?

    #98273
    Anonymous
    Guest

    Had to write a submission recently where the legal advice centre were quoting Baumbast as a reason for my claimant to get HB. I sought advice from DWPand this is what Ursula told me:

    Baumbast concerns the right of a child to remain in the UK in order to complete their education and for the principal carer to remain with them – in the Baumbast case there were two parents and Mr B left the UK to work but kept his home in the UK and all Mrs B wanted was a residence permit which allowed her and one of her daughters to live here as neither of them are EEA nationals. The ruling didn’t allow access to benefit and in fact both Mr & Mrs B were self-sufficient.

    The Baumbast judgment has been reflected in EC Directive 2004/38/EC on the rights of residence and the Immigration (EEA) Regulations 2006 (reg 10 which is also attached) which transpose the directive into UK law. The purpose of the judgment and regulation 10 is to ensure that the children of EEA workers who cease to work are able to continue their education if the EEA national ceases to be a qualified person – it isn’t there to give access to income-related benefits. The Commissioner has agreed with us (see attached decisions) on two cases which a Tribunal chair had decided should be allowed on Baumbast and ruled in our favour.

    Your customer only has a right to reside if she is looking for work and now that she has withdrawn from the labour market she is economically inactive so only has a right to reside if she is self-sufficient – she clearly isn’t self-sufficient as she has applied for IS, HB & CTB. Baumbast only allows her children to stay at school and for her to remain in the UK with them as their primary carer – it doesn’t give her a right to reside for benefit purposes. I assume that there is no sign of the father of the children or the yet to be born child as she could derive rights from him which would give her a right to benefit – she doesn’t have to be living with him in order to gain those rights but they do have to be married and he must be working.

    The cases Ursula sent me were CIS 1121 07 and CIS 3444 06.

    Hope this helps.

    #98274
    Anonymous
    Guest

    It is true that, since this thread started last October, Commissioner Rowland has issued the decision mentioned in Ursula Brennan’s reply above. The way he sees it, Directive 2004/38 has plugged a gap in the previous rights of residence directives and has rendered Baumbast obsolete on the point of a parent gaining a right to reside through a child in education. Therefore, unless the claimant falls within the scope of the Directive as it applies to Baumbastic situations, there is no right of residence. As to the scope of the Directive, see Article 12.3 [url=https://hbinfo.org/menu2/europe/dir_2004_38_ec.pdf]here[/url]

    I understand that CPAG is considering sponsoring an appeal against Commr Rowland’s decision

    #98275
    jane
    Participant

    [quote:707e714359=”cgoodall”]
    The cases Ursula sent me were CIS 1121 07 and CIS 3444 06.

    Hope this helps.[/quote:707e714359]

    I cannot seem to locate either of these cases either on this web site or the Commissioners. Would anyone have a link please?

    #98276
    Anonymous
    Guest

    Hi Jane

    I’ve got them in an email.

    If you send me a private message with your email address, I’ll email them to you.

    #52497
    jane
    Participant

    I attended an appeal tribunal for my case last week and I have today found that the appeal was allowed. The person had quoted the Baumbast case, and I used the CIS/3444/2006 in rebuttal.

    The Chairman has said that the Commissioner’s case CIS/1685/2007 was applied. I can’t find this case on the Commissioner’s web site or on here. Does anyone have a link to it or know about it?

    Jane

    #98277
    stevedaymond
    Participant

    Jane a recent case with similar circumstances was LBC Harrow v Ibrahim and Secretary of State for the Home Dept, but I cant find that this case has been resolved. It was held in April 08. Might be of some use if you can find that it has been resolved??

    #98278
    kareena2b
    Participant

    Need to clarify some points-
    my clmt is from Nigeria and was married to an EEA guy in 1999-this could have been arranged as she is 15 years his senior, but Home Office agree that she qualifes to Right of Residence as she has 3 children, due to Bambust C-413/99 ruling, this was agreed Sept 2005.

    She has since being doing a nursing course and has not claimed HB and we have no knowledge of husbands wherabouts.
    Passport has stamp giving her right of residence as a family member of an EEA member awarded Dec05 valid to 8Sept07, current Home Office doc dated 29Aug07 suggests she is applying for a residence permit. She has now been suspended from her course but is doing temporary working and claiming HB- just want confirmation that she is eligiable to claim benefits and if so on what basis.

    #98279
    stevedaymond
    Participant

    Has anyone been able to find a copy of CIS/1685/2007 yet?

    #98280
    Anonymous
    Guest

    No, and when I went on my Benefits for Europeans course at the end of July I mentioned it to Peter Barker and he hadn’t been able to find it either!

    #52502
    stevedaymond
    Participant

    Excellent!!!!!

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