(Freedom of movement for persons Right of residence National of a Member State who worked in another Member State and remained there after ceasing to work Child in vocational training in the host Member State No means of subsistence Regulation (EEC) No 1612/68 Article 12 Directive 2004/38/EC)
- This reference for a preliminary ruling concerns the interpretation of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1) ('Regulation No 1612/68'), and of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28).
- The reference was made in the course of proceedings between Ms Teixeira and the London Borough of Lambeth and the Secretary of State for the Home Department concerning the rejection by that borough of Ms Teixeira's application for housing assistance.
Legal context
European Union legislation
- The fifth recital in the preamble to Regulation No 1612/68 reads as follows:
'Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country'.
- Article 10 of Regulation No 1612/68 provided:
'1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependent relatives in the ascending line of the worker and his spouse.
2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States.'
- Article 11 of Regulation No 1612/68 provided:
'Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.'
- Articles 10 and 11 of Regulation No 1612/68 were repealed with effect from 30 April 2006 by Article 38(1) of Directive 2004/38.
- Article 12 of Regulation No 1612/68, which is not among the provisions of that regulation that were repealed by Directive 2004/38, 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 courses under the same conditions as the nationals of that State, if such children are residing in its territory.
Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.'
- Recitals 3 and 16 in the preamble to Directive 2004/38 read as follows:
'(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.
...
(16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.'
- Article 7 of Directive 2004/38 governs the right of residence for more than three months of citizens of the Union in a Member State whose nationality they do not possess. Under Article 7(1):
'All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).'
- Article 12 of Directive 2004/38, 'Retention of the right of residence by family members in the event of death or departure of the Union citizen', states in paragraph 3:
'The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.'
- Article 16 of that directive provides that citizens of the Union who have resided legally for a continuous period of five years in the host Member State are to have the right of permanent residence there.
- Article 24(1) of that directive provides, in particular, that all Union citizens residing on the basis of the directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the EC Treaty.
- In accordance with the first subparagraph of Article 40(1) of Directive 2004/38, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 30 April 2006.
National legislation
- Directive 2004/38 was transposed into the legal system of the United Kingdom by the Immigration (European Economic Area) Regulations 2006.
- As regards housing assistance, Part VII of the Housing Act 1996 provides for housing assistance for eligible persons who are homeless and satisfy certain conditions.
- The details of that assistance are set out in the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006.
- According to the order for reference, to be eligible for housing assistance under regulation 6 of those regulations, which concerns persons from abroad who are not subject to immigration control, an applicant must both have a right of residence and also be habitually resident in the United Kingdom.
- In this connection, in addition to British citizens, those who have a right of residence in the United Kingdom include nationals of the Member States exercising a right under European Union law to enter and remain in the United Kingdom.
- It follows from the relevant national provisions that Ms Teixeira's entitlement to housing assistance depends on whether she has a right of residence in the United Kingdom conferred by European Union law.
The main proceedings and the questions referred for a preliminary ruling
- Ms Teixeira, a Portuguese national, arrived in the United Kingdom in 1989 with her husband, also a Portuguese national, and worked there from 1989 to 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.
- After 1991 Ms Teixeira had intermittent periods of work in the United Kingdom. She was not working when Patricia started to go to school in the United Kingdom, but she worked for various periods during her daughter's education. Her last employment in the United Kingdom was in early 2005.
- On 13 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 childcare 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 under Part VII of the Housing Act 1996. She based her claim to a right of residence in the United Kingdom in particular on Article 12 of Regulation No 1612/68, as interpreted by the Court in Case C-413/99 Baumbast and R [2002] ECR I-7091.
- The assessment officer of the London Borough of Lambeth considered that Ms Teixeira was not eligible for housing assistance, and therefore rejected her application.
- Ms Teixeira challenged that refusal before the reviewing officer, who upheld the original decision on the ground that Article 12 of Regulation No 1612/68 had been modified by Directive 2004/38 and that, in view of her lack of self-sufficiency, Ms Teixeira could not claim a right of residence on the basis of that article.
- Ms Teixeira appealed to the County Court against that decision.
- Before that court, Ms Teixeira accepted that she had no right of residence under Article 7(1) of Directive 2004/38, that she did not satisfy the conditions set out in Article 7(3) of that directive for her to be regarded as having retained the status of worker, and that she did not have a right of permanent residence under Article 16 of that directive.
- She submitted that the sole basis on which she sought to claim a right of residence in the United Kingdom was the fact that her daughter was in education there and had an independent right of residence under Article 12 of Regulation No 1612/68, as interpreted by the Court in Baumbast and R, and that she had been her daughter's primary carer from March 2007.
- Since the County Court dismissed her appeal by judgment of 16 November 2007, Ms Teixeira appealed against that judgment to the referring court.
- Before the referring court, Ms Teixeira argues in particular that her daughter has an independent right of residence in the United Kingdom under Article 12 of Regulation No 1612/68, that she herself also has a right of residence there in that she is the primary carer for her daughter, and that there is no requirement for a child or her primary carer to be self-sufficient in order to have a right of residence on the basis of Article 12.
- The respondents in the main proceedings submit that Directive 2004/38 now defines the conditions governing the right of residence in the Member States of citizens of the Union and members of their families, so that the exercise of any right of residence, even if it derives from Article 12 of Regulation No 1612/68, presupposes that the persons concerned satisfy the conditions for residence set out in that directive. Since Ms Teixeira herself admits that she does not satisfy the conditions which Articles 7 and 16 of that directive impose on the right of residence, the London Borough of Lambeth was right to conclude that she had not acquired such a right and could not therefore claim housing assistance.
- In the alternative, the respondents in the main proceedings submit that, if it is possible for Ms Teixeira to derive a right of residence from Article 12 of Regulation No 1612/68 even though she does not satisfy the conditions laid down by Directive 2004/38, such a right presupposes that she is self-sufficient, which is not the case. Moreover, the right of residence conferred on the parent who is the child's primary carer ends when the child reaches the age of 18. Finally, since Ms Teixeira did not have the status of worker when her daughter began her education and she subsequently worked only for short periods, she is not entitled to claim a right of residence solely by reference to the fact that her daughter is in education.
- The Court of Appeal of England and Wales, Civil Division, which had already made a reference to the Court for a preliminary ruling in Case C-310/08 Ibrahim, in which judgment is being given today, concerning the right of residence of a parent who is not a citizen of the Union but whose children are of Danish nationality and are in education in the United Kingdom, decided to stay the proceedings in the present case too, and to refer the following questions to the Court for a preliminary ruling:
'In circumstances where
an EU citizen came to the United Kingdom
the EU citizen was for certain periods a worker in the United Kingdom
the EU citizen ceased to be a worker but did not depart from the United Kingdom
the EU citizen has not retained her status as a worker and has no right to reside under Article 7 and has no right of permanent residence under Article 16 of Directive 2004/38 ...
the EU citizen's child entered education at a time when the EU citizen was not a worker but the child remained in education in the United Kingdom during periods when the EU citizen was in work in the United Kingdom
the EU citizen is the primary carer of her child and
the EU citizen and her child are not self-sufficient:
(1) does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 ...
or
(2) (a) does the EU citizen enjoy a right to reside derived from Article 12 of Regulation ... No 1612/68 ... as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 ...
and
(b) if so, must she have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State;
(c) if so, must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation ... No 1612/68 ... as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education;
(d) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of 18?
(3) If the answer to Question 1 is yes, is the position different in circumstances such as the present case where the child commenced education prior to the date by which Directive 2004/38 ... was to be implemented by the Member States but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, i.e. after the date by which the directive was to be implemented?'
Consideration of the questions referred
Questions 1 and 2(a)
- By its first question and point (a) of its second question, which should be examined together, the referring court asks essentially whether, in circumstances such as those of the main proceedings, a national of a Member State who was employed in another Member State in which her child is in education may, in her capacity of primary carer for that child, claim a right of residence in the latter Member State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38, or whether she can claim a right of residence only if she satisfies those conditions.
- Article 12 of Regulation No 1612/68 confers on the children of a national of a Member State who is or has been employed in the territory of another Member State the right to be admitted to the latter State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if those children are residing in its territory.
- In Baumbast and R the Court held, in connection with the right of access to education set out in Article 12 of Regulation No 1612/68 and under certain conditions, that the child of a migrant worker or former migrant worker has a right of residence in order to attend educational courses in the host Member State, and that the parent who is the child's primary carer has a corresponding right of residence.
- Thus the Court ruled, first, that the children of a citizen of the Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard (see, to that effect, Baumbast and R, paragraph 63).
- Second, the Court also ruled that, where the children enjoy, under Article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parents who are their carers are at risk of losing their rights of residence, a refusal to allow those parents to remain in the host Member State during the period of their children's education might deprive those children of a right which has been granted to them by the legislature of the European Union (see, to that effect, Baumbast and R, paragraph 71).
- After observing, in paragraph 72 of Baumbast and R, that Regulation No 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, the Court concluded, in paragraph 73 of that judgment, that the right conferred by Article 12 of that regulation on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies.
- It is apparent from the order for reference that the referring court wishes to know whether the rights thus accorded to the child and the parent who is the child's primary carer are based on Article 12 of Regulation No 1612/68 alone or on the application of Article 10 together with Article 12 of that regulation.
- In the latter case, as Article 10 was repealed and replaced by the rules set out in Directive 2004/38, the referring court is uncertain whether the interpretation in Baumbast and R still applies following the entry into force of Directive 2004/38, and whether the right of residence of the child's primary carer is now subject to the conditions laid down by that directive for the exercise of the right of residence.
- For a person such as the appellant in the main proceedings, who ceased working and did not retain the status of worker, those conditions follow from Article 7(1)(b) of Directive 2004/38, which provides that nationals of a Member State are to have the right of residence on the territory of another Member State for a period of longer than three months without being economically active if they have sufficient resources for themselves and their family members and comprehensive sickness insurance cover in the host Member State.
- It must be examined in this connection whether, as Ms Teixeira, the Portuguese Government, the Commission of the European Communities and the EFTA Surveillance Authority submit, even after the entry into force of Directive 2004/38, Article 12 of Regulation No 1612/68 allows a person who, in the host Member State, is the primary carer for the child of a migrant worker who is in education in that State to have a right of residence.
- First, the right of children of migrant workers to equal treatment in access to education, under Article 12 of Regulation No 1612/68, applies only to children who are residing in the Member State in which one of their parents is or has been employed.
- Access to education thus depends on the child first being installed in the host Member State. Children who have installed themselves in the host Member State in their capacity of members of the family of a migrant worker, and also as the Advocate General observes in point 39 of her Opinion children of a migrant worker who, like Ms Teixeira's daughter in the case in the main proceedings, have resided since birth in the Member State in which their father or mother is or was employed, may rely on the right of access to education in that State.
- Contrary to the submissions of the London Borough of Lambeth and the United Kingdom and Danish Governments, Article 12 of Regulation No 1612/68, as interpreted by the Court in Baumbast and R, allows a child to have an independent right of residence in connection with the right of access to education. In particular, the exercise of the right of access to education was not conditional on the child retaining, throughout the period of education, a specific right of residence under Article 10(1)(a) of that regulation, when that provision was still in force.
- In paragraphs 21 to 24 of the judgment in Case C-7/94 Gaal [1995] ECR I-1031, the Court rejected the argument that there was a close relationship between Articles 10 and 11 of Regulation No 1612/68 on the one hand and Article 12 of that regulation on the other, so that Article 12 granted the right of equal treatment in access to education in the host Member State only to children who satisfied the conditions set out in Articles 10 and 11. In paragraph 23 of Gaal, the Court expressly stated that Article 12 contains no reference to Articles 10 and 11.
- It would be contrary to the context of Article 12 of Regulation No 1612/68 and the aims pursued by that article to make the exercise of the right of access to education depend on the existence of a separate right of residence of the child, assessed by reference to other provisions of that regulation (see, to that effect, Gaal, paragraph 25).
- It follows that, once the right of access to education derived by the child from Article 12 of that regulation has been acquired as a result of being installed in the Member State in which one of the parents works or has worked, the right of residence is retained by the child and can no longer be called into question because the conditions which were set out in Article 10 of that regulation are not satisfied.
- Second, the right of children to equal treatment in access to education does not depend on the circumstance that their father or mother retains the status of migrant worker in the host Member State. As is apparent from the very wording of Article 12 of the regulation, that right is not limited to children of migrant workers, and applies also to children of former migrant workers.
- In paragraph 69 of Baumbast and R, the Court moreover expressly stated that Article 12 of Regulation No 1612/68 seeks in particular to ensure that children of a worker who is a national of a Member State can, even if he has ceased to be employed in the host Member State, undertake and, where appropriate, complete their education in the latter Member State.
- It is settled case-law that Article 12 of Regulation No 1612/68 requires only that the child has lived with his or her parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal, paragraph 27).
- Article 12 of Regulation No 1612/68 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.
- That independence of Article 12 of Regulation No 1612/68 from Article 10 of that regulation, which has since been repealed, formed the basis of the judgments of the Court referred to in paragraphs 37 to 39 above, and was not called into question by the entry into force of Directive 2004/38.
- The London Borough of Lambeth and the United Kingdom and Danish Governments submit that Directive 2004/38, since its entry into force, constitutes the sole basis for the conditions governing the exercise of the right of residence in the Member States of citizens of the Union and the members of their families, and consequently that no right of residence may now be derived from Article 12 of Regulation No 1612/68.
- On this point, there is nothing to suggest that, when adopting Directive 2004/38, the legislature intended to alter the scope of Article 12 of that regulation, as interpreted by the Court, so as to limit its normative content from then on to a mere right of access to education.
- It should be noted here that, unlike Articles 10 and 11 of Regulation No 1612/68, Article 12 of that regulation was not repealed or even amended by Directive 2004/38. The European Union legislature thus did not intend thereby to introduce restrictions of the scope of Article 12, as interpreted in the case-law of the Court.
- That interpretation is confirmed by the fact that the travaux préparatoires to Directive 2004/38 show that it was designed to be consistent with the judgment in Baumbast and R (COM(2003) 199 final, p. 7).
- Moreover, if Article 12 of Regulation No 1612/68 were to be interpreted as being limited, since the entry into force of Directive 2004/38, to conferring the right to equal treatment with regard to access to education without providing for any right of residence for the children of migrant workers, maintaining it would appear superfluous after the entry into force of that directive. Article 24(1) of the directive provides that all Union citizens residing in the territory of the host Member State are to enjoy equal treatment with the nationals of that State within the scope of the Treaty, and it has been held that access to education falls within the scope of European Union law (see, inter alia, Case 293/83 Gravier [1985] ECR 593, paragraphs 19 and 25).
- Finally, it should be noted that, according to recital 3 in the preamble to Directive 2004/38, the aim of that directive is inter alia to simplify and strengthen the right of free movement and residence of all Union citizens (see, to that effect, Case C-127/08 Metock and Others [2008] ECR I-6241, paragraph 59). In circumstances such as those of the main proceedings, to make the application of Article 12 of Regulation No 1612/68 subject to compliance with the conditions set out in Article 7 of that directive would have the effect that the right of residence of children of migrant workers in the host Member State in order to commence or continue their education there and the right of residence of the parent who is their primary carer would be subject to stricter conditions than those which applied to them before the entry into force of that directive.
- The answer to Questions 1 and 2(a) is therefore that a national of a Member State who was employed in another Member State in which his or her child is in education may, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38.
Question 2(b)
- By point (b) of its second question, the referring court asks essentially whether the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.
- The London Borough of Lambeth and the United Kingdom and Danish Governments submit that the possibility of the parents having a right of residence on the basis of Article 12 of Regulation No 1612/68 was recognised in Baumbast and R only because of the particular circumstances of the two cases which were the subject of that judgment, in which the condition that citizens of the Union must have sufficient resources for themselves and the members of their families was satisfied. That judgment cannot therefore be applied in situations where that condition is not satisfied.
- Those arguments cannot be accepted, however.
- In one of the cases which were the subject of the Baumbast and R judgment, Mr Baumbast, the father of the children whose right of residence in the host Member State under Article 12 of Regulation No 1612/68 was at issue, did indeed have resources which allowed him and his family not to be a burden on that State's social assistance system. However, the question of Mr Baumbast's self'sufficiency was addressed only in connection with the referring court's third question in the case concerning him, relating to his right of residence under Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26).
- On the other hand, the answers given by the Court to the first two questions referred for a preliminary ruling, relating to the right of residence of the children and their mother who cared for them, were based not on their self-sufficiency but on the fact that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires the best possible conditions for the integration of the worker's family in the host Member State and that a refusal to allow the parents caring for the children to remain in the host Member State during the period of their children's education might deprive the children of a right granted to them by the European Union legislature (Baumbast and R, paragraphs 50 and 71).
- In any case, since the Court pointed out, in paragraph 74 of Baumbast and R, that in view of the context and the objectives of Regulation No 1612/68, in particular Article 12, that provision cannot be interpreted restrictively and must not be rendered ineffective, it cannot be argued on the basis of that judgment that the granting of the right of residence at issue is conditional on self-sufficiency, as the Court did not base its reasoning even implicitly on such a condition.
- The interpretation that the right of residence in the host Member State of children who are in education there and the parent who is their primary carer is not subject to the condition that they have sufficient resources and comprehensive sickness insurance cover is supported by Article 12(3) of Directive 2004/38, which provides that the departure or death of the citizen of the Union does not entail the loss of the right of residence of the children or the parent who has actual custody of them, irrespective of their nationality, if the children reside in the host Member State and are enrolled at an educational establishment for the purpose of studying there, until the completion of their studies.
- While that provision is not applicable in the main proceedings, it illustrates the particular importance which Directive 2004/38 attaches to the situation of children who are in education in the host Member State and the parents who care for them.
- The answer to Question 2(b) is therefore that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.
Question 2(c)
- By point (c) of its second question, the referring court asks essentially whether the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is conditional on one of the child's parents having worked as a migrant worker in that Member State on the date on which the child started in education.
- According to its wording, Article 12 of Regulation No 1612/68 applies both to a child whose parent 'is ... employed' in the territory of the host Member State and to one whose parent 'has been employed' there. Nothing in that article indicates that its scope is limited to situations in which one of the child's parents had the status of migrant worker at the precise moment when the child started in education, or that the children of former migrant workers have only a limited right of access to education in the host Member State.
- As stated in paragraph 50 above, the child's right of access to education under Article 12 of that regulation does not depend on the maintenance of the status of migrant worker of the parent concerned. Children of former migrant workers can therefore rely on the rights deriving from Article 12 on the same basis as children of citizens of the Union who have the status of migrant workers.
- In the light of the case-law referred to in paragraph 37 above, it is enough that the child who is in education in the host Member State became installed there when one of his or her parents was exercising rights of residence there as a migrant worker. The child's right of residence in that State in order to attend educational courses there, in accordance with Article 12 of Regulation No 1612/68, and consequently the right of residence of the parent who is the child's primary carer, cannot therefore be subject to the condition that one of the child's parents worked as a migrant worker in the host Member State on the date on which the child started in education.
- Consequently, the answer to Question 2(c) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child's parents having worked as a migrant worker in that Member State on the date on which the child started in education.
Question 2(d)
- By point (d) of its second question, the referring court asks essentially whether the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority.
- According to the documents before the Court, that question of the effect of the child's majority on the right of residence enjoyed by the parent in the capacity of the child's primary carer was raised because of the circumstance that Ms Teixeira's daughter was aged 15 when the application for housing assistance was made, and has in the meantime reached the age of 18, thus coming of age under the law of the United Kingdom. The question should be examined from the point of view of Article 12 of Regulation No 1612/68, since, as follows from the answer to Questions 1 and 2(a), that is the provision on which a right of residence may be based for a person in Ms Teixeira's situation.
- It should be observed, first, that reaching the age of majority has no direct effect on the rights conferred on a child by Article 12 of Regulation No 1612/68, as interpreted by the Court.
- Having regard to their subject-matter and purpose, the right of access to education under Article 12 of Regulation No 1612/68 and the child's associated right of residence both continue until the child has completed his or her education.
- Since, according to settled case-law, the scope of Article 12 of Regulation No 1612/68 extends also to higher education (see, inter alia, Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraphs 29 and 30, and Gaal, paragraph 24), the date on which a child completes his or her education may lie after reaching the age of majority.
- In Gaal the Court ruled on whether the definition of 'child' for the purposes of Article 12 of Regulation No 1612/68 is limited to children who are under 21 or dependent on the migrant worker, in order to decide whether the right of equal treatment set out in that article could be relied on, in connection with the grant of a training allowance, by a child of a migrant worker who was 21 or older and no longer dependent on that worker.
- After recalling, in paragraph 24 of Gaal, that the principle of equal treatment set out in Article 12 of Regulation No 1612/68 requires that the child of a migrant worker must be able to continue his studies in order to complete his education successfully, the Court held, in paragraph 25, that Article 12 also encompasses financial assistance for those students who are already at an advanced stage in their education, even if they have already reached the age of 21 and are no longer dependants of their parents.
- According to that judgment, to make the application of Article 12 of that regulation subject to an age-limit or to the status of dependent child would conflict not only with the letter of that provision but also with its spirit (Gaal, paragraph 25).
- It must be examined, second, whether the fact that the rights the child derives from Article 12 of Regulation No 1612/68 have thus been held to apply, without any condition as to age, to children who have reached the age of majority or are no longer dependent on the migrant worker means that a parent caring for an adult child can reside with that child in the host Member State until the completion of his or her education.
- In paragraph 73 of Baumbast and R, the Court held that the right of children of a migrant worker to pursue, under the best possible conditions, their education in the host Member State would be infringed if the person who is the primary carer were not able to reside with the child in that Member State during the period of education.
- Although children who have reached the age of majority are in principle assumed to be capable of meeting their own needs, the right of residence of a parent who cares for a child exercising the right to education in the host Member State 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. It is for the referring court to assess whether that is actually the case in the main proceedings.
- Consequently, the answer to Question 2(d) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.
Question 3
- This question is asked by the referring court only in the event that Question 1 is answered in the affirmative, that is, if a person in the situation of Ms Teixeira cannot claim a right of residence under Directive 2004/38.
- In view of the answer given to Questions 1 and 2(a), there is no need to answer Question 3.
Costs
- Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1. A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
2. The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.
3. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child's parents having worked as a migrant worker in that Member State on the date on which the child started in education.
4. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.
[Signatures]
* Language of the case: English.
