Case C-480/08

Maria Teixeira

v

London Borough of Lambeth

and

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))

(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)

Summary of the Judgment

1.        Freedom of movement for persons – Workers – Right of a worker’s children to access to education provided by the host Member State – Right of residence in order to attend general educational courses

(Council Regulation No 1612/68, Art. 12)

2.        Freedom of movement for persons – Workers – Right of residence of family members – National of a Member State having been employed in the host Member State – Parent who is the primary carer of a child in education in that Member State

(Council Regulation No 1612/68, Arts 10 and 12; European Parliament and Council Directive 2004/38, Art. 7)

3.        Freedom of movement for persons – Workers – Right of residence of family members – Parent who is the primary carer of a child exercising the right to pursue education

(Council Regulation No 1612/68, Art. 12)

4.        Freedom of movement for persons – Workers – Right of residence of family members – Parent who is the primary carer of a child in education in the host Member State

(Council Regulation No 1612/68, Art. 12)

5.        Freedom of movement for persons – Workers – Right of residence of family members – Parent who is the primary carer of a child in education in the host Member State

(Council Regulation No 1612/68, Art. 12)

1.        The children of a citizen of the European 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 on freedom of movement for workers within the Community. 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 para. 37)

2.        A national of a Member State who was employed in another Member State in which his or her child is in education can 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 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, without being required to satisfy the conditions laid down in Directive 2004/38 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, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96.

The right conferred by Article 12 of Regulation No 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his or her education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his or her primary carer and, accordingly, that that person is able to reside with the child in that Member State during his or her studies. 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. That independence of Article 12 from Article 10 of that regulation, which has since been repealed, was not called into question by the entry into force of Directive 2004/38. 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. 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.

(see paras 39, 53-54, 60-61, operative part 1)

3.        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 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, 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.

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.

(see paras 67, 70, operative part 2)

4.        The right of residence in the host Member State of the parent who is the primary carer of 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.

The child’s right of access to education under Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, 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. 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.

(see paras 73-75, operative part 3)

5.        The right of residence in the host Member State of the parent who is the primary carer of 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.

First, reaching the age of majority has no direct effect on the rights conferred on a child by Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92. Having regard to their subject-matter and purpose, the right of access to education under Article 12 of that regulation and the child’s associated right of residence both continue until the child has completed his or her education.

Second, 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 national court to assess whether that is actually the case.

(see paras 78-79, 86-87, operative part 4)