Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the appeal tribunal (made on 4 September
2007 at Worcester under reference 055/07/00372) involved the making of an error
in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the
Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: on her claim for income support (made on 18
November 2006 and refused by a decision made on 29 January 2007), the claimant
is a person from abroad whose applicable amount was nil. She is not entitled to
income support.
Reasons
for Decision
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 31st 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
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