Right to reside/HRT and the BAUMBAST case

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  • #52503
    jane
    Participant

    I have now got CIS/1685/2007 – see my other post on Right to reside – I phoned the Commissioners office and got it.

    It says that Tribunal’s must consider ‘right to reside’ by virtue of former spouses and their work status.

    #98281
    stevedaymond
    Participant

    Could you please forward that onto me at

    stephen.daymond@plymouth.gov.uk

    Many thanks 😀

    #98282
    Anonymous
    Guest

    Could you possibly email me a copy of CIS/1685/2007 at

    gary.burkinshaw@islington.gov.uk

    Many thanks

    #98283
    Anonymous
    Guest
    #98284
    Anonymous
    Guest

    HBINFO would be happy to have it I am sure – email to the webmaster[no_space]@hbinfo.org

    #98285
    stevedaymond
    Participant

    Having received a copy of the commissioners decision im fairly confused. The way I read it:

    If the husband is not working the wife does not have a qualifying right to reside.

    If the husband is working (or has worker status) at the time the claim or decision is made then the wife does have a qualifying right to reside

    If the husband was working but then ceases employment (or worker status) prior to the claim and the wife has children in education they have a non-qualifying right to reside under the Baumbast ruling.

    Isnt this what we were already supposed to be doing and nothing has changed???

    If I have misinterpretted it I apologies for being a bit silly! 😳

    Can I also ask the level of evidence that is being requested by other authorities in order to determine a former husband / wife is in employment. Obviously this can be a sore subject if they have not parted on good grounds.

    As always any help is greatly appreciated.

    Steve

    #98286
    Anonymous
    Guest

    I have now seen the decision (got it from the Commissioners’ office and have forwarded it to the HBINFO webmaster) and all is now clear!

    The Income Support claim in 1685/2007 was made (just) before 30 April 2006 – before Directive 2004/38/EC came into force. At that stage, there was no EU legislation in place to protect people in Baumbastic situations and so Baumbast clearly applied.

    It is only after 30/4/06, since which time the Directive caters for Baumbastoids, that Commissioner Rowland’s decisions (1121/07 and 3444/06) are significant. If you look at the legislation quoted in CIS/1685/2007, you will see that it refers to the pre-2004/38 EU provisions.

    I understand that there is still some controversy about this because in yet another of these cases I was looking at yesterday (CIS/608/2008) Commissioner Jacobs says that he is holding an oral hearing later in the yuear to consider whether Baumbast still has any place in European law since Directive 2004/38 came into force. The oral hearing is on CIS/2417/2007 Helpfully, he comments at paragraph 11: [quote:dfdbdcbae4]The present state of the law on the scope of Baumbast makes it impossible to say whether or not the tribunal went wrong in applying that case. A resolution of the relevant issues on Baumbast may be months, or even years, away.[/quote:dfdbdcbae4]

    All good fun

    #98287
    jane
    Participant

    Sorry for not sending the case on – I’ve been on holiday.

    Steve – I think that if a person is relying on their partner in order to have a right to reside, we need to know that the person is in genuine and effective employment, therefore we would need wage slips etc. This is as far as we would go, and yes, it may be contentious, but hopefully these cases will be few and far between.

    #52511
    Anonymous
    Guest

    [quote:72f3b0365e]I understand that there is still some controversy about this because in yet another of these cases I was looking at yesterday (CIS/608/2008) Commissioner Jacobs says that he is holding an oral hearing later in the year to consider whether Baumbast still has any place in European law since Directive 2004/38 came into force. [/quote:72f3b0365e]

    Peter – any idea if this hearing has taken place yet or if not, when it is scheduled?

    I’ve been looking over the judgment in the Ibrahim case, which is being referred to the European Court of Justice for a ruling on whether Baumbast was fully absorbed into the 2004 Directive. The judgement I have seems to favour the LA, but I’ve been advised it could take several years before its decided by the ECJ. Meanwhile, I have another appeal of Baumbastic proportions to deal with!

    #98288
    jane
    Participant

    I have a case at the Upper Tribunal involving maternity leave / worker status and have received Observations which asked whether I agree that the decision should be stayed pending the outcome of 2 cases which are pending in the ECJ which involve Baumbast (LB Harrow v Ibrahim and Teixeria v LB Lambeth and The Secretary of State).

    I’ve got about 6 similar cases to refer to the Tribunal Service, should I ask the TS to stay these also pending the outcome?

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