Eleonora Konodyba v Royal Borough of Kensington and Chelsea

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Longmore,Lord Justice Gross,Master of the Rolls
Judgment Date20 July 2012
Neutral Citation[2012] EWCA Civ 982
Date20 July 2012
Docket NumberCase No: B5/2011/1398

[2012] EWCA Civ 982

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE

HIS HONOUR JUDGE MCMULLEN QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

The Right Honourable Lord Justice Longmore

and

The Right Honourable Lord Justice Gross

Case No: B5/2011/1398

Between:
Eleonora Konodyba
Appellant
and
Royal Borough of Kensington and Chelsea
Respondent

Mr Martin Westgate QC & Mr Lindsay Johnson (instructed by Hodge Jones & Allen LLP) for the Appellant

Mr Kelvin Rutledge & Ms Sian Davies (instructed by RBKC Legal Services) for the Respondent

Hearing dates: 3 rd July 2012

Lord Justice Longmore
1

Dr Konodyba, who is a Polish national, appeals from the decision of His Honour Judge McMullen QC sitting in the Central London County Court to affirm the decision of the respondent's Housing Review Officer, Mr Dominic Stack, of 23 rd November 2010 that Dr Konodyba was not eligible for housing assistance under Part 7 of the Housing Act 1996, because she was subject to immigration control pursuant to section 185(2) of that Act. She challenges that decision on the grounds that she was a migrant worker at the Thistle Hotel in Kensington between January and July 2006 and thereafter self-employed while her son was attending school; she says therefore, that she is not subject to immigration control.

2

The starting point of Dr Konodyba's case is Article 12 of EEC Regulation No. 1612/68 which provides:—

"The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training of that State, if such children are residing in its territory."

3

In Baumbast & R v Secretary of State for the Home Department [2002] 2 CMLR23 (" Baumbast"), the European Court of Justice ("ECJ") held that in order to promote mobility within the Union, Article 12 should be interpreted as meaning that children of EU nationals who install themselves in another Member State during the exercise in that State by a parent of the rights of residence of migrant workers are entitled to reside there in order to attend general education courses, even if the parent ceases to be a migrant worker. Further, in order to enable the children to exercise this right, the parent who is their primary care-giver must be entitled to remain with them, irrespective of that person's nationality or status as a migrant worker.

4

The case for the respondent ("the Council") is that what I will call Baumbast rights were not initially available to Polish migrant workers during the accession period with the UK due to derogations from Free-Movement rights contained in the Treaty and Act of Accession made between eight of the accession States ("the A8 States"), including the Republic of Poland, and the existing Member States including the UK. For an accession State worker to derive such rights, he or she had to complete at least twelve months' continuous employment in accordance with "national measures" which, in the UK, took the form of the Worker Regulation Scheme ("WRS"), and it is common ground that Dr Konodyba did not achieve that.

5

The rights contained in Regulation 1612/68 appear in three parts or "Titles". The derogations upon which the Council rely are contained in Annex XII to the Act of Accession and they refer only to Title I rights. However, in Zalewska (AP) v Department for Social Development (Northern Ireland) (" Zalewska") [2008] 1 WLR 2602 the House of Lords held that by necessary implication those derogations extend to Article 7 which is contained in Title II. It is the case for the Council that by a similar process of interpretation, and by looking at all three Titles as constituting a single and coherent scheme, the derogations further extend by implication to Title III rights which include Article 12. Consequently, the Council contends, Baumbast rights were caught by the derogations and were therefore initially unavailable to A8 nationals during the accession period and could only be acquired by them upon completion of at least twelve months' employment in the UK under the WRS.

6

This litigation has a history. In 2008 Dr Konodyba applied to the Council for homelessness assistance and, on 22 nd August of that year, a decision was made that she was ineligible for assistance. That decision was upheld on review and Dr Konodyba's appeal to the Wandsworth County Court on Baumbast grounds was dismissed by His Honour Judge Behar. Permission to appeal to the Court of Appeal was granted by Rix LJ and the hearing was fixed for 29 th June 2009. Dr Konodyba, who with the assistance of public funding had retained solicitors and two counsel, dismissed her lawyers by telephone on or shortly before the morning of the hearing, and after a short adjournment so that she could attend in person she addressed the court on different grounds saying that she no longer wished to rely on her Baumbast grounds and submitting, amongst other things, that she wished to argue that she had retained her worker status and/or that she had a self-employed status; she also asked for an adjournment so that she could pursue these contentions and that her case should be referred to the ECJ. Rix LJ, with whom Wall & Aikens LJJ agreed, said this:—

"…it is clear to me that the present appeal has been abandoned and therefore the order of this court which I would propose to my Lords is that this appeal is dismissed. In the circumstances there is nothing which this court could possibly refer to the European Court of Justice."

The Court accordingly ordered that Dr Konodyba's application to adjourn the appeal was refused, her appeal was dismissed and her application to refer questions to the ECJ be refused.

7

Dr Konodyba thereafter obtained privately rented accommodation. When she was required to leave that accommodation she made another application to the Council for accommodation under Part 7 of the Housing Act 1996. A decision made pursuant to section 184 of that Act concluded that she was ineligible for assistance. A review was requested, and, on 23 rd November 2012, Mr Stack upheld the earlier decision. He found that whereas Dr Konodyba had been in registered employment at the Thistle Hotel during 2006 following which she has been self-employed for a period, she did not enjoy on-going rights of residence in the UK and was accordingly ineligible for housing assistance. On this occasion, and in response to representations made on behalf of Dr Konodyba, Mr Stack additionally found that Dr Konodyba did not enjoy retained worker status because she could not show temporary illness (he accepted that she was ill but made findings of fact that the illness was not temporary and in any event not causative of the loss of her employment at the Thistle Hotel) and further, that while Dr Konodyba had engaged in self-employment for a short period in 2006, for similar reasons she did not have or retain the status of a self-employed person. In the course of his decision Mr Stack made reference to, and relied upon, the decision of Mr Briggs QC (now Briggs J) in Putans v London Borough of Tower Hamlets [2007] HLR 10 (" Putans") to the effect that "retained" worker status did not extend to A8 nationals during the Accession period. Dr Konodyba appealed.

8

Judge McMullen heard arguments relating to res judicata, estoppel and abuse of process, and dismissed the appeal, without making any decision on Dr Konodyba's retained worker status or self-employment status. With the permission of Patten LJ,...

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