Bolton Metropolitan Borough Council v HY (HB): [2018] UKUT 103 (AAC): [2018] AACR 31

Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 23 March 2018.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
11 April 2018
Last updated
16 September 2019 — See all updates
Categories:
European Union law
Sub-categories:
European Union law - free movement, European Union law - workers
Judges:
Ward, C
Decision date:
28 March 2018

Read the full decision in [2018] AACR 31ws

Judicial Summary

Reported as [2018] AACR 31

European Union Law – Regulation 492/2011 – rights under Article 10, whether child must have been installed in the host Member State at a time when at least one of the child’s parents resided there as a worker

The claimant, a Dutch national, worked in the UK between May 2013 and September 2013 in employment which was not disputed by the local authority. Her children came to the UK in July 2014. The claimant made a claim for jobseeker’s allowance in September 2014, and a claim for housing benefit in October 2014. The local authority rejected the housing benefit claim on the basis the claimant did not meet the requirement to have a right to reside. The claimant appealed to the First-tier Tribunal (Ft-T). The Ft-T allowed the appeal, concluding that a derivative right was established. The local authority appealed to the Upper Tribunal submitting that it was necessary for there to be a common period when the child or children were installed in the UK and the parent was a worker.

Held, allowing the appeal, that:

  1. while there are inevitable points of difference in the facts, the structure of paragraph 30 in C-197/86 Brown is such that the paragraph must be applied to the present case also. (paragraph 34);

  2. what is required is an initial common period when the child is installed and the parent is a worker. That is how the Court of Justice has repeatedly chosen to define the nexus on which access to the right conferred by Article 12 of Regulation 1612/68 and subsequently Article 10 of Regulation 492/11 depends; in the language of C-115/15 NA, para 54, when the child is “in their capacity as family members of a migrant worker.” (paragraph 40).

  3. the children of jobseekers (as opposed to those who retain worker status through looking for work) cannot avail themselves of article 10. MDB and others v SSHD [2012] EWCA Civ 1015 is binding authority and is correct. If being a jobseeker counted, such a person could immediately be joined by their children and, whatever the person’s subsequent connection with the labour market (or lack of it), the child on entering school would have rights under Article 10 and the parent a derivative right. That would subvert the finely crafted delineation of the rights (and limitations on) jobseekers in C-292/89 Antoniessen. (paragraph 33); The judge set aside the decision of the F-tT and re-made the decision to the effect that the appeal by the claimant against the local authority’s decision of 15 October 2014 is dismissed.

Published 11 April 2018
Last updated 16 September 2019 + show all updates

  1. Decision selected for reporting as [2018] AACR 31

  2. First published.