London Borough of Harrow v Ibrahim & Anor

Children of an EU migrant worker may have an education-related right to remain in the host state, with a derivative right for their primary carer. The Court of Appeal held that the post-codification position was unclear where the worker had stopped working before leaving, education had begun shortly after arrival, and the family lacked self-sufficiency. It was uncertain whether article 12 of Regulation (EEC) No 1612/68, as interpreted in Baumbast, continued to operate independently of Directive 2004/38/EC, and whether sufficient resources and sickness insurance were required. The questions were referred to the ECJ.

Ms Ibrahim, a Somali national, sought homelessness assistance from the London Borough of Harrow for herself and her four Danish children. Her separated Danish husband had worked in the United Kingdom, ceased to be a qualified person, left, and later returned without regaining that status. The two eldest children had begun state education shortly after arriving in the United Kingdom. The Borough rejected the application and upheld that decision on review. Recorder Hochhauser QC allowed Ms Ibrahim’s appeal in the Clerkenwell and Shoreditch County Court on 18 October 2007. The Borough appealed, raising whether the family’s residence rights arose only under Directive 2004/38/EC or could still derive from article 12 of the 1968 Regulation, including whether self-sufficiency and sickness insurance were required.

Reference and outcome. The Court of Appeal did not determine the substantive residence question. It held that the issues were not acte clair and referred three questions to the ECJ.

1. The court noted that Directive 2004/38/EC was intended as a single codification of the existing Community instruments on free movement and residence. Articles 10 and 11 of Regulation (EEC) No 1612/68 had been repealed, while article 12 survived. The court considered it uncertain whether the repeal of article 10 and its replacement by article 7 of the Directive left the full rationale of Baumbast intact.
2. The court treated GBC Echternach and A Moritz v Netherlands Minister for Education and Science [1989] ECR 723 and Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091 as involving materially different facts. Echternach concerned adult students with lengthy residence. Baumbast involved a self-sufficient family, while the conjoined case of R involved a worker who remained employed in the United Kingdom.
3. The court was inclined to read Baumbast as deriving the education-related residence implication from the combination of articles 10 and 12, rather than article 12 alone. It was also inclined to agree that the answers to Baumbast’s first two questions had been given without reference to self-sufficiency. Nevertheless, the self-sufficient facts of Baumbast and the general principle applicable outside the worker context left the issue unresolved.
4. The court observed that article 12 of the Directive was the modern express source of retained residence after death or departure of the Union citizen. Article 12(3) appeared to leave a lacuna where the worker had ceased working before departure. It was unclear whether the surviving article 12 of the 1968 Regulation and Baumbast nevertheless conferred residence rights, and whether sufficient resources and comprehensive sickness insurance were required. The referred questions addressed those issues, including the temporal position where education and cessation of work preceded implementation of the Directive.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 386, referred three questions to the ECJ because the issues were not acte clair.
• Clerkenwell & Shoreditch County Court: Recorder Hochhauser QC allowed Ms Ibrahim’s appeal on 18 October 2007, holding that Directive 2004/38/EC was not a complete code and that retained residence rights arose under article 12 of the 1968 Regulation.
• London Borough of Harrow housing review: The initial refusal dated 1 February 2007 was upheld on statutory review on 29 March 2007.