has anyone successfuly challenged the exclusion from benefits of single mothers who can't work for childcare reasons? my client is a mother of a 3 and 5 year old. Worked full time in holland, paid tax and social security there. she's been in the country more than 6 months too so I don't think she can even claim JSA legitimately as a workseeker.

Is anyone fighting these on a discrimination basis, and if so how far have you got?!
many thanks

have had no success YET, but from discussions with immigration specialist colleagues think the following argument may be worth running if the older child is in school. I hope so, as i have 4 clients all fleeing domestic violence and all destitute.

The recent changes to the law, in effect, added an additional restriction for claimants from other EEA countries, namely that they should have ‘right to reside’. If someone is an EU citizen, and is in the UK, as, for example, a worker, or a student, or self-sufficient she/he is a ‘qualified person’, and as such (in general) has the right to reside<1>, and can therefore claim benefits. However, someone who is economically inactive, and does not have sufficient resources to avoid becoming a burden on the social security system, is not a ‘qualified person’, does not, therefore, have ‘right to reside’, and therefore cannot claim these benefits.

However, as noted above, one category of people whose right to reside is not subject to the proviso about being self-sufficient is students. According to caselaw <3>, ‘Where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right’

In other words, it appears to us that if at least one of a potential claimant’s children is attending school, she must, under Baumbast, also have a right to reside that is not subject to the proviso regarding economically inactive persons.

<1> The Immigration (EEA) Regulations 2000 (SI 2000, No 2326) Paras 5(1) and 14(1)
<2> as above, 3(1)(e)
<3> European Court of Justice, C-413/99 17/9/2002, Baumbast (G.C. Rodríguez Iglesias, President, et Al)

This argument has only just occurred to us and may not works: if it does I'll let you know; if it works for anyone else please let me know!

I am also having the same problem with EU single parents. I agree that Baubast gives parents of children with the right to reside to attend educational courses an ancillary right to reside.

my problem is with establishing that the children have the right to reside. looking at para 5 of the EEA Regs it would seem to me that they only have a right to reside if they are self-sufficient.

If i'm wrong on this then I would be happy to be wrong and grateful for the relevant law on this point. In that case I think it's adefinite runner.

I don't think you can bring the children within Art 12.

Art 12 reads:

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.

That seems to me to require the parent to have worked in the UK. It only seems to me to cover the kids of workers - who would have the right to reside anyway.

Someone please tell me I'm wrong!

What's the general opinion in a case where the parent has worked in the UK? Scenario similar to above & previous postings- client Portuguese, been in UK since 2003, worked till May 2004, relationship breakdown, domestic violence, had to stop work as has school-age child. Refused IS although interestingly, HB/CTB awarded wef 17/5/04. Also recieving CTC. Appeal ongoing and am interested in trying above argument. Any thoughts?

Hi Giles
Can you let me know if you had any success with the Baumbast case law re parents of children who had right to reside in order to attend school also subsequnlty becoming entitled to right to reside aas the children's carer regardless of whether economically active or not

and if so is there any problem in proving that children intially have right to reside
thanks
Jacky

I wouldn't put too much reliance on the fact that HB/CTB has been awarded: local authorities are even fuzzier on this area of law than DWP. I see not a few cases in which people who clearly have no right to reside have been mistakenly paid local authority benefits.

As this seems to have popped back up, CPAG may be looking for Baumbasty cases at the mo' especially where the circumstances of a parent's worker status are quite strong.

If you've got such cases it'd be worth giving them a ring as it may provide grounds to challenge Mr Comm'r rowland's findings in CIS 1121 2007 that Baumbast no longer applies.

I won an appeal last August with a Baumbast argument. The application of the case to welfare benefits was thought to depend on whether the EU national had installed the kids in education whilst being a worker. In my case the client had worker for over a year, during which the children started school, and was then laid off. She claim IS and not JSA as her youngest child had been diagnosed with leukaemia and she needed to care for him.
The Tribunal had no doubt that Baumbast was applicable to this case and the DWP never appealed further. My impression at that time was that some Tribunals were accepting Baumbast arguments and some were not.
Since then as stated above we have had the negative decision of CIS 1121 2007 which distinguished the facts of that case from Baumbast. The Commissioner drew attention to the fact that Mr B was a self supporting worker - but one of the points about Baumbast was that it considered 3 sets of rights, that of Mr B, Mrs B and the children.
Also Baumbast issues have been referred to the ECJ in the case of LB Harrow v Ibrahim - awaiting ruling.
So it appears to be an uncertain time for Baumbast arguments - what is the current experience of running the argument before a Tribunal?