Toby Vanhegan, barrister, Arden Chambers
Dropping anchor
Two landmark cases have opened up eligibility for social housing for non-European migrants
On 23 February the European Court of Justice made two important rulings which affect the rights of non-European economic area nationals to live in the UK.
One of the judgements, London Borough of Harrow v Ibrahim and secretary of state for the home department, hit the headlines and incurred the wrath of critics by allowing a Somali woman to remain in her north London council house and to receive other state benefits, even if she was a burden on the state. A Harrow councillor warned that it ‘could well become a floodgate judgment’ (Inside Housing, 26 February).
The ECJ held that a non-EEA national has an unconditional right to reside in the UK if they are the parent and primary carer of a child in education here, so long as they are married to an EEA national who has worked in the UK.
On the same day, the ECJ ruled on Teixeira v London Borough of Lambeth and SSHD. In this case, the court held that an EEA national has an unconditional right to reside in the UK if they are the parent and primary carer of a child in education here, so long as they have worked in the UK. In both situations, the child also has a right to reside.
In both cases, it was held that an unconditional right to reside means that the parent does not have to be self-sufficient but can instead be a burden on the social assistance system of the host member state - in both these cases, the UK. There is no requirement for the parent to have comprehensive sickness insurance cover in the UK to benefit from the right of residence.
In the case of Teixeira, the court reached two other important conclusions. First, it was held that the right of residence was not conditional on one of the child’s parents having worked in the UK on the date on which the child started in education. Second, it was held that the right to reside ends when the child reaches the age of 18, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.
The implications
Both cases were references from the Court of Appeal and carry a number of important implications. First, because as a general rule a person is eligible for housing assistance under parts six and seven of the Housing Act 1996 and for most welfare benefits, if they have both a right to reside and are habitually resident in the UK, these two decisions add new categories of persons who are now eligible for housing and other welfare benefits.
Second, the legal basis for the right to reside was found in article 12 of regulation (EEC) number 1612/68 of the Council, which dates back to October 1968. Ms Ibrahim and Ms Teixeira both accepted that they had no right to reside under domestic law or by virtue of directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004.
This means that those who make decisions on issues of eligibility will have to pay close attention to an increasing array of directives and case law issued by the ECJ. An already difficult task has now become even more complicated.
Finally, the cases raise the issue of whether a person in the position of Ms Ibrahim or Ms Teixeira might be entitled to a permanent right of residence in the UK, pursuant to article 16 of Directive 2004/38/EC, once they have exercised the right to reside for five years. Another part of the directive - recital (17) - suggests not, because the right of residence does not comply with the conditions laid down in the directive.
The conditions set out by the ECJ to have a right to reside as a parent and primary carer of a child in education are not hard to satisfy. The effect of these cases may be an increase in applicants eligible for housing and other forms of welfare benefits.
This is likely to strain the resources of local authorities and the Department of Work and Pensions. This may cause a change in the law to exclude eligibility. Further developments are likely.
Toby Vanhegan appeared as counsel in the European Court of Justice in the Teixeira case
toby.vanhegan@ardenchambers.com
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Readers' comments (1)
S A Longden | 19/03/2010 4:32 pm
Until insane rulings like this are conspicuously disregarded by organizations, the fantastical nature of the EU will continue! Excuse me but as I understand it other countries have schools and houses, and people who come here have families from whence they came.
So what makes these judges think that all of a sudden the child would have no education and the 'right to a family life' doesn't exist outside the UK. Get real, these bums are here for the freebies and been given them by doogooder who don't pay for it. We pay in terms of taxes, less for OUR children and a country overcrowded and concreted over.
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