Bolton MBC & Anor (HB)

A child’s right of access to education under Article 10 of Regulation (EU) No. 492/2011 depends on an initial period when the child resided in the host state with a parent who was a worker there. The provision does not assist a child who arrives only after the parent has ceased to be a worker.

A parent who is merely a jobseeker, rather than a worker or a person retaining worker status, cannot found such a right. General principles of free movement cannot enlarge rights beyond the limits established by the legislation and settled Court of Justice authority.

The local authority refused the Dutch claimant’s housing-benefit claim because she had no right to reside. She had previously undertaken genuine work in the United Kingdom, but had ceased it before her children arrived and began school. The First-tier Tribunal held that the children’s education gave her a derivative right of residence.

The local authority appealed. It contended that Article 10 required a period during which the children were resident in the United Kingdom and their parent was a worker. The claimant contended that EU law imposed no such requirement and that Article 10 could be relied on directly despite regulation 15A(3)(b).

1. Appeal allowed. The First-tier Tribunal erred in treating proof of the claimant’s former genuine employment as sufficient to establish a derivative right of residence. Its decision was set aside and the claimant’s appeal against the refusal of housing benefit was dismissed.

2. Article 10 of Regulation (EU) No. 492/2011, like its predecessor Article 12, requires an initial common period in which the child resided in the host member state with a parent who was residing there as a worker. Brown v Secretary of State for Scotland C-197/86 stated that requirement generally. Later Court of Justice decisions repeatedly confirmed it. The final sentence in Brown was an application of the general rule to its facts, not an exhaustive statement of when the rule applies.

3. The claimant’s children did not reside in the United Kingdom during her employment. The statutory condition in regulation 15A(3)(b) was therefore unmet, and direct reliance on EU law could not produce a different result.

4. A jobseeker does not thereby become a worker for Article 10 purposes. Binding domestic authority excluded reliance upon a period of job-seeking, and extending the provision to jobseekers would undermine the defined limits on their rights. The wider free-movement purpose of the Regulation could not displace those settled limits. No reference under Article 267 was required.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the local authority’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remade it by dismissing the claimant’s appeal against the local authority’s decision of 15 October 2014.
• First-tier Tribunal: Held that the claimant had established a derivative right of residence through her children’s education.