EU Court clarifies residency terms for the carers of the children of migrant workers

By Leo Gasteen

The European Court of Justice (ECJ) has ruled, in accordance with Community regulation on the freedom of movement, that the child of a migrant worker is allowed to have an independent right of residence in connection with the right of access to education in the host Member State.

The ruling comes after a request put forward by the British Court of Appeal to the ECJ, asking to review two cases related to family law and the freedom of movement regulations. 

The British Court of Appeal was also interested as to whether the interpretation of Article 12 of the regulation adopted in the Baumbast judgement still applied following the entry into force of the new directive, and whether the right of residence of the person who is the child’s primary carer is now subject to the conditions laid down by the directive for the exercise of the right of residence, especially the requirement that the parent must have sufficient resources not to become a burden on the social assistance system.

The ECJ pointed out that 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 European Union law which expressly govern the conditions of exercise of the right to reside in another Member State.

The independence was not called into question by the entry into force of the new directive. The Court points out that Article 12 of the regulation was not repealed or even amended by the directive, unlike other articles of the regulation. 

Background

London Borough of Harrow v Nimco Hassan Ibrahim

Ms Nimco Hassan Ibrahim, a Somali national, arrived in the United Kingdom in February 2003 to join her husband, Mr Yusuf, a Danish citizen, who worked there from October 2002 to May 2003. The couple have four children of Danish nationality, aged from 1 to 9. The three eldest arrived in the United Kingdom with their mother and the fourth was born in the United Kingdom. The two eldest have attended State schools since their arrival.

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 Community law.

Ms Ibrahim separated from Mr Yusuf after his departure. She was never self-sufficient, and depends entirely on social assistance. She does not have comprehensive sickness insurance cover and relies on the National Health Service. In January 2007 she applied for housing assistance for herself and her children. The application was rejected on the ground that only persons with a right of residence under European Union law could make such an application, 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.

Maria Teixeira v London Borough of Lambeth

Ms Maria Teixeira, a Portuguese national, arrived in the United Kingdom in 1989 with her husband, also a Portuguese national, and worked there until 1991. Their daughter Patricia was born there on 2 June 1991. Ms Teixeira and her husband were subsequently 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 June 2006 a court ordered that Patricia should live with her father, but could have as much contact with her mother as she wished. 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.

On 11 April 2007 Ms Teixeira applied for housing assistance for homeless persons. Her application was rejected on the ground that she did not have a right of residence in the United Kingdom, since 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.

European Court of Justice - Justice and Application - Full Text