I am trying to follow/understand the various recent threads concerning RTR, with decreasing confidence. In the blue corner, Mr Baumbast, and in the red, Commissioner Rowland!
On a tangent, what about the case of a french national who has worked f/t in the UK for 2 years, and will shortly be going on maternity leave with her first baby. She intends to go back to work. She will get maternity pay for a while, but will then need IS as a lone parent. Assuming Reg 5(2) of the 2000 Imm (EEA) Regs does not apply because she won't hopefully be incapacitated by illness/accident, where does she stand?
I have read some thread generated arguments on similar cases suggesting that you can argue an entitlement via direct application of Article 12 of EC Treaty (no discimmination on grounds of nationality) or Article 18 (right to move/freely reside). However, dark clouds gathered when I read CIS/2358/2006. Here is clip from para 10...
'....I accept that there is a distinction on the facts but it does not seem to me to be material in relation to Article 12. In CIS/3182/2005, I suggested in paragraph 24 that arguments arising under Article 12 as to whether discrimination can be justified were more or less the same arguments that arise under Article 18 when considering the proportionality of limitations or conditions imposed on rights of residence. What Abdirahman makes clear is that one must always approach a case by considering rights of residence first. If a person does have a right of residence, discrimination is unlawful under Article 12. On the other hand, unequal treatment is permissible if it is a consequence of a person not having a right of residence. This is entirely consistent with what was said by the European Court of Justice at paragraphs 40 to 46 of Trojani v. Centre public d’aide sociale de Bruxelles (Case C-456/02)...'
I am aware that some consider this approach is wrong, and that appeals might be in the pipeline. However, what do you think the client should do in the meantime? The knee jerk response at local IS section will probably be 'not economically active... no IS'. I can't see client signing on for JSA after the baby (could be availability problems anyway, because of intention to return to work).
Any ideas?
|