Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 11 July 2008 - London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department

(Case C-310/08)

Language of the case: English

Referring court

Court of Appeal (Civil Division) (England and Wales)

Parties to the main proceedings

Applicant: London Borough of Harrow

Defendants: Nimco Hassan Ibrahim, Secretary of State for the Home Department

Questions referred

In circumstances where (i) a non -EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:

(1)    do the spouse and children only enjoy a right of residence in theUnited Kingdom if they satisfy the conditions set out in Directive 2004/38of the European Parliament and of the Council of 29 April 2004¹?;

OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968², as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004;

and

(ii) if so, must they 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?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

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¹ - 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 (EEC) 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 L 158, p. 77

² - Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community OJ L 257, p. 2