right to reside as a primary carer of a child in education

My client is a Dutch national as is her husband he is a worker but she had to leave due to DV. She and her 3 children left in Jan 12 at this time the oldest child who is 5 was at primary school. Because they have been relocated twice and have now this week just found permanent accommodation the 5 year old has not been in school though she will hopefully start in Sept when place is found. Can my client argue she has a right to reside as a primary carer of a child in education even though the child’s education has been disrupted?

I’m also going to argue right to reside as a family member of a worker as they are still married but she would prefer not to use this route.

Thanks.

The guidance on this allows for temporary breaks in residence of the child (of less than 6mths or longer depending on intent), presumably the same principle applies to breaks in education.  Anyone else have any thoughts?

Para 15 of Memo DMG 30/10 revised states:

“However, if the child leaves the UK for other than temporary periods, the rights under Article 12 would end. Absences of less than 6 months could be considered as temporary if that was the intention at the outset, and had remained so throughout. Longer periods could still be temporary depending on the reason for absence. Where the child leaves the UK for other than temporary reasons, that absence will end Article 12 rights. For instance, a Spanish national comes to the UK in 2004 with his child and is employed here for several protracted periods, during which the child starts school. They go back to Spain in 2007, but then return to the UK in 2010 and the parent claims IS as a single parent. He does not have a right to reside because the child no longer has Article 12 rights.”

You’re obviously arguing Teixeira.  It’s an interesting one this.  Breaks in residence can often mean breaks in education so there would be nothing wrong in principle in education breaks and obviously there are compelling reasons in your client’s case.  I’m not aware if the point has ever been considered by the ECJ but you obviously need to pursue it.  I think your client should also pursue family member of qualified person route also as a back up, unless someone has something more definitive to offer.  I personally love using Teixeira and have one on the go myself at the moment.

Further route - children have RtR as family members of a worker and therefore by the same reasoning that works in Baumbast so should their parent/main carer. However, her status as spouse is still strongest and she would retain it if marraige terminated (art. 13 EC Dir. 2004/38). Back stop position is that she has RtR as jobseeker and can restrict availability of course.

Of course, I don’t know why I didn’t think of it earlier, if she said she that she was looking for work on the habitual residence part of the forms then she can qualify for IS following the court’s decision in Elmi, as she would be registered with the employment services aand if she has reasonable prospects of finding work.  I used that recently.  I fully expected to go all the way to tribunal and was pleasantly surprised when the DWP reversed the decision.  And, quite quickly as well.

nevip - 29 June 2012 01:38 PM

Of course, I don’t know why I didn’t think of it earlier, if she said she that she was looking for work on the habitual residence part of the forms then she can qualify for IS following the court’s decision in Elmi, as she would be registered with the employment services aand if she has reasonable prospects of finding work.  I used that recently.  I fully expected to go all the way to tribunal and was pleasantly surprised when the DWP reversed the decision.  And, quite quickly as well.

Nevip - was that a case where the claimant only had workseeker status? Didn’t think Elmi would work unless someone has asserting retained worker status which doesn’t look like it is the case here.

Sorry you’re right.  Forget that.

Don’t get my hopes up like that ...

Thanks for the replies. I’ve gone with the spouse argument and used Domino’s suggestion re temporary absent because abroad and asked them to use the same principle here. I’ve got her SW to do a supporitng letter to go with it so fingers crossed. Alternatively I’ve told her she will have to claim JSA till the oldest finds a school.

Further route - children have RtR as family members of a worker and therefore by the same reasoning that works in Baumbast so should their parent/main carer.

I hadn’t thought about this I see your reasoning but have you successfully argued it with a case?  Thanks

I have but the logistics involved can be difficult.  I had a lone parent who was in a battered wives’ refuge.  It took effort to track down the status of her husband, and it had risks, but once we had done so DWP revised the decision as she was the spouse of a qualified person.  Whole process took 12 months however.

Being second tier haven’t had a chance to deploy the argument nor am I aware of any cases that have had to use it as yet. In theory should work (certain esteemed CPAG colleagues I think would agree) but given that might be a bit unfamiliar to DMs would take some persuasion without an appeal. Best I think to stick to the spouse route as that is available - might be of more use say if she was an unmarried partner in same situation.