INSTRUCTIONS TO CANDIDATES
Referencing: numerical plus bibliography. Refer to OSCOLA guide: https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf, in particular pages 28-31
Style: Arial, 12pt, 1.5 line spacing. Headings permitted.
Submission & marking: Via Blackboard Turnitin, anonymised.
DO NOT INCLUDE YOUR NAME OR STUDENT NUMBER IN YOUR ANSWER – your submission must be anonymous.
Bernadette, an Irish teacher, has fallen in love with David, a recruitment consultant from Slovakia. Since 2009 he has worked full-time for a recruitment consultancy firm in the United Kingdom. Bernadette moved in with David in London in 2015 and is currently looking for a teaching post in schools and colleges in the city.
They have very close friends, Katya and Stijn. Katya is from Ukraine, and Stijn is from Belgium. They have resided in the UK since 2017, when they got married. Kayta is a part time librarian, and Stijn is an events manager, organizing hospitality events for football clubs. They had their first child, Emilie, in August this year.
Both couples have encountered problems with the British authorities. In September 2019, Stijn and David attended a football match. A fight broke out in the crowd, and both retaliated when opposing fans threw coins at them. Two men died after sustaining stab wounds, and Stijn and David were arrested by the police, charged with murder. Following a request from the immigration authorities, if convicted, both will be deported as soon as they are released from prison. Katya is very worried about how this will affect her right to reside in the UK. In the meantime, she applies for child benefit for Emilie and is told that she is not eligible to receive it, on the grounds that she is not a UK citizen, and that she has not resided in the UK for three years.
Bernadette was offered a job as a teacher in a London school in 2017. Bernadette accepted the job, and was disappointed to discover that she is at the bottom of the pay scale for her position, despite having over 10 years’ experience in Irish schools. She challenged the offer, and was told that her salary cannot be increased because her Irish diploma was awarded after three years study, when four years is the norm in the UK. Furthermore, to be placed higher in the pay scale requires five years’ residence in the UK.
Bernadette takes the school to court in London, and claims that she has been discriminated against. The case reaches the Court of Appeal, which decided that Regulation 492/2011 does not apply to her situation because she has not resided in the UK for five years, and therefore rules against referring a question to the Court of Justice of the European Union. It also refuses leave to appeal; as a result, Bernadette loses the case.
i) Advise Bernadette, David, Stijn and Katya how EU Law relates to their free movement rights (60% of the total mark)
ii) Advise Bernadette on what she can do about the Court of Appeal’s decision not to refer a question to the Court of Justice of the European Union (20% of the total mark)
iii) Advise the European Commission on its rights regarding the decision of the Court of Appeal (20% of the total mark).