Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Permission is given to the claimant to appeal against the decision of the First-tier Tribunal made on 4 August 2009 at Fox Court under reference 242/09/01429)

As that decision 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: at the time of her claim for a jobseeker's allowance (made on 24 November 2008 and refused on 16 December 2008), the claimant had a right to reside in the United Kingdom. Her entitlement to a jobseeker's allowance is to be determined on that basis.

Reasons for Decision

A.         Introduction

1.          This decision has been long delayed while the law on various aspects of an EU citizen’s right to reside in the United Kingdom has been clarified.

2.          The Secretary of State’s representative has conceded the case. As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of rule 40(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. I will, though, explain the decision briefly, as it brings together a number of issues.

B.         The facts

3.          The claimant is Polish. She came to the United Kingdom on 15 August 2005 with two of her children. One was born in 1991 and the other in 1993. From 1 October 2006 to 25 November 2007, the claimant worked on a self-employed basis. From 26 November 2007, she was employed as a machinist until she was made redundant on 10 October 2008. She did not register that employment under the workers registration scheme. On being made redundant, she immediately resumed self-employment. She made claims for housing benefit and council tax benefit on 11 October 2008 and for a jobseeker's allowance on 24 November 2008. Both were refused and her appeals to the First-tier Tribunal were dismissed.

4.          There is no evidence of when the claimant’s children entered education, but they were in education at the time the claimant made her claim for a jobseeker's allowance. As they arrived in August 2005, it is reasonable to infer that they had entered education by the time the claimant started employment in November 2007.

C.         The law

5.          Article 10 of Regulation (EU) 492/2011 (formerly Article 12 of Regulation (EEC) 1612/68) provides:

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.

6.          In order to render the child’s right to education effective, the Court of Justice of the European Union has decided that the child’s primary carer must have a right to reside. The circumstances in which the carer’s right arises has been developed through a series of cases: Baumbast v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091; Ibrahim v Secretary of State for the Home Department (Case C-310/08) [2010] I-1065; Teixeira v London Borough of Haringey (Case C-480/08) [2010] ECR I-1107; and Secretary of State for Work and Pensions v Czop and Punakova (Cases C-147 and 148/11).

7.          This case adds a further layer to those authorities.

8.          As the claimant was from Poland, she was subject to the workers registration scheme under the Accession (Immigration and Workers Registration) Regulations 2004 (SI No 1219). It provides that a person must be employed in registered employed for 12 months before acquiring the full status of a worker.

9.          In Secretary of State for Work and Pensions v JS [2010] UKUT 347 (AAC), I decided that persons who were registered were workers for the purpose of Article 12 (now Article 10) while working and before the 12 months period expired.

10.       In this case, the claimant did not register. However, regulation 7(3) of the 2004 Regulations provides:

Where a worker begins working for an employer on or after 1st May 2004 that employer is an authorised employer in relation to the worker during the one month period beginning on the date on which the work begins.

The Secretary of State’s representative has conceded that by virtue of that paragraph the claimant had worker status for the first month of her employment, during which time her children were in general education. Accordingly, she has a right to reside under Article 10.

 

11.       That is the basis of the concession on which I have given the claimant permission to appeal, set aside the tribunal’s decision and re-made that decision in the claimant’s favour. The Secretary of State will now decide her claim for a jobseeker's allowance on the basis that she had a right to reside in the United Kingdom.

 

 

 

 

Signed on original on 26 February 2013

Edward Jacobs Upper Tribunal Judge