Right of Residence, Children, Parents and Means of Support: Case C-310/08 and Case C-480/08

The Court of Justice has handed down not one but two important judgments on the the free movement of persons and the tight of residence.

In Case C-310/08 Ibrahim and Case C-480/08 Teixeira the Court of Justice held that a child of a migrant worker migrant worker has an independent right of residence in connection with the right of access to education in the host State and that a parent who is the primary carer of the child who is in education also has a right of residence which is not conditional on the parent having sufficient means not to become a burden on the social support system of the host State.

Here are the stories.

First, Case C-310/08 Ibrahim.

Ms Ibrahim, a Somali national, arrived in the United Kingdom in February 2003 to join her husband, Mr Yusuf, a Dane, who worked there from October 2002 to May 2003. They had four children of Danish nationality.

From June 2003 to March 2004 Mr Yusuf claimed incapacity benefit. After being declared fit to work in March 2004, he left the United Kingdom. Between ceasing work and leaving the United Kingdom, Mr Yusuf ceased to satisfy the conditions for lawful residence there under EU law. Ms Ibrahim separated from Mr Yusuf after his departure from the UK. She was never self-sufficient, and depends entirely on social assistance. She has no comprehensive sickness insurance cover. In January 2007 she applied for housing assistance for herself and her children. Her application was rejected on the ground that only persons with a right of residence under EU law could apply, and neither Ms Ibrahim nor her husband were resident in the United Kingdom under European Union law. Ms Ibrahim appealed to the national courts against that decision.

Next, Case C-480/08 Teixeira.

Ms Teixeira, a Portuguese national, arrived in the United Kingdom in 1989 with her husband, also Portuguese, and worked there until 1991. The had a daughter Patricia, born t on 2 June 1991. Ms Teixeira and her husband then divorced, but they both remained in the United Kingdom. From 1991 to 2005 Ms Teixeira worked for intermittent periods in the United Kingdom, and Patricia went to school there.

In November 2006 Patricia enrolled on a child care course at the Vauxhall Learning Centre in Lambeth. In March 2007 Patricia went to live with her mother. In April 2007 Ms Teixeira applied for housing assistance for homeless persons. Her application was rejected because she did not have a right of residence in the United Kingdom, as she was not in work and was not therefore self-sufficient. She challenged that refusal before the national courts, arguing that she had a right of residence because Patricia was continuing her education.

Thus both cases turned on whether Ms Ibrahim and Ms Teixeira could claim a right of residence in the UK under EU law as they are the primary carers of children in education in the UK even if they could not support themselves without state assistance.

The Court of Justice held in both judgments that the mothers could indeed claim such a right of residence.

Article 10 of Regulation 1612/68 on the freedom of movement o workers within the Community provided that the members of the family of a migrant worker who was a national of one member State and employed in another member State had the right to install themselves with that worker, whatever their nationality. Its Article 12 also provides that the children of such a worker are entitled to attend general educational, apprenticeship and vocational training courses if they are residing in the host Member State.

In Case C-413/99 Baumbast the Court held that article 12 means that the child of a migrant worker has a right of residence if he or she wishes to attend educational courses in the host member State, even if the migrant worker no longer resides or works in that member State. That right of residence extends also to the parent who is the child’s primary carer.

Regulation 1612/68 was subsequently amended by Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. It provides that all citizens have the right to move and reside in the territory of another member State as workers or students or if they have comprehensive sickness insurance cover and sufficient resources not to become a burden on the social assistance system. It repealed Article 10 of Regulation 1612/68 replacing it with a right of residence for members of the family of citizens who satisfy the conditions for residence. It did not, on the other hand, repeal Article 12 of the regulation, on the right of access to the educational system. It also provides that the right of residence of a child enrolled at an educational establishment, for the purpose of studying there, and that of the parent who has actual custody of the child are not affected by the departure or death of the citizen.

The Court held that Article 12 of Regulation 1612/68 allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host member State. Before the entry into force of Directive 2004/38/EC, when Article 10 of Regulation 1612/68 was still in force, the right of access to education laid down by Article 12 of the regulation was not conditional on the child retaining, throughout the period of education, a specific right of residence under Article 10. Once the right of access to education has been acquired, the right of residence is retained by the child and can no longer be called into question. Article 12 of the regulation requires only that the child has lived with at least one of his or her parents in a Member State while that parent resided there as a worker. That article must therefore be applied independently of the provisions of EU law which expressly govern the conditions of exercise of the right to reside in another member State (Case C-7/94 Gaal [1995] ECR I-1031, paragraph 25).

The Court also held that the independent application of Article 12 of Regulation 1612/68 was not called into question by the entry into force of the new directive: Article 12 of the regulation was not repealed or even amended by the directive, unlike other articles of the regulation.

Interestingly, the Court referred to the legislative history of the directive which shows that it was designed to be consistent with Case C-413/99 Baumbast.

Next, the Court held that the grant of the right of residence for the children and the parent is not conditional on self-sufficiency. That interpretation is supported by the directive, which provides that the departure or death of the citizen does not entail the loss of the right of residence of the children or the parent.

Consequently, the Court finds that that the right of residence of the parent who is the primary carer of a child of a migrant worker who is in education is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of the host Member State.

A specific question was raised in Case C-480/08 Teixeira as to whether the parent’s right of residence ends when the child reaches the age of majority. In 2009 Ms Teixeira’s daughter Patricia reached the age of 18, thus coming of age under the law of the United Kingdom.

The Court answered that there is no age limit for the rights conferred on a child by Article 12 of the regulation: The right of access to education and the child’s associated right of residence continue until the child has completed his or her education.

As for the right of the parent to reside, the Court held that in principle children who have reached the age of majority are in principle assumed to be capable of meeting their own needs. But, the Court continued, the right of residence of the parent may nevertheless extend beyond that age, if the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education (Case 413/99 Baumbast, paragraph 73) It is for the national court to assess whether that is actually the case.

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