Sample Solution

The requirement of 5 years of residency in the UK amounts to indirect discrimination to nationality in this case. This requirement largely impacts those citizens who move from other Member States which is also a fundamental freedom of EU citizens.

The ESC, in my opinion, must refer questions about the local authority’s refusal to grant Bjarne a school place to the Court of Justice of the European Union as legally, it is requirement to receive and have an education until the age of 18 in London. The authority’s refusal of this has not only breached this legal requirement but it has also breached Bjarne’s Article 18 TFEU rights as well which include protection from discrimination of nationality. The fact that Bjarne has special needs means that his schooling options are already limited and the requirement of 6 years residency in the UK is purely discriminatory to any EU citizens who move to another Member State. The freedom to move and reside freely in another Member State is one of the fundamental freedoms of the EU and the authority here are clearly breaching it. The reason the ESC must refer the questions about the local authority’s actions is because the residency requirement is a direct breach of his rights and it should be brought to the Court of Justice that such requirements in order to attend a special needs school should be abolished in all Member States. Especially because Bjarne is still a child and its within his rights to be in full time education at his age anyway. He should have been attending school from a much younger age. Under Article 24 (1) of the Directive 2004/38 he also has the right to equal treatment of the nationals of the host Member State which he is not receiving. This area of law is not developed enough as the scope of EU law suggests that students should be treated equally, however, it doesn’t specify the difference between ‘normal’ and disabled students either. If the Court of Justice looked at this issue as well as the questions which arose from the authority’s refusal to grant Bjarne a place, it could reform and adapt EU law provisions related to this topic and prevent situations like Bjarnes arising in the future in