The European Court of Justice (ECJ) has handed down two key decisions regarding the rights of residency for primary carers of children in education.

They confirm that where the children of nationals of member states who work or have worked in the host member state are in education, their primary carer has a right of residency in that host member state.

The facts of the cases

In Ibrahim v London Borough of Harrow the facts the ECJ had to consider were:

  • A non-EU national spouse and her EU national children accompanied an EU national who came to the UK
  • The EU national was in the UK as a worker
  • The EU national then ceased to be a worker and subsequently left the UK
  • The EU national and the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the UK
  • The children commenced primary education in the UK shortly after their arrival while the EU national was a worker.

The issues

  1. Do the spouse and children only enjoy a right of residence in the UK if they satisfy the conditions in Directive 2004/38  
  2. (a) Do they 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. (b) 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 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 this case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 was to be implemented by the member states?

In Maria Teixeria v London Borough of Lambeth the facts the ECJ had to consider were:

  • An EU citizen came to the UK
  • The EU citizen was for certain periods a worker in the UKThe EU citizen ceased to be a worker but did not depart from the UK
  • 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 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 UK during periods when the EU citizen was in work in the UK
  • The EU citizen is the primary carer of her child
  • The EU citizen and her child are not self-sufficient.

The issues

  1. Does the EU citizen only enjoy a right of residence in the UK if she satisfies the conditions set out in Directive 2004/38.  
  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. (b) If so, must she have access to sufficient resources so as to not become a burden on the social assistance system of the host member state 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 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 this 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?

Summary of the ECJ's decision

The court decided that in the circumstances summarised above, Article 12 of Regulation No 1612/68 must be applied independently of the provisions of European Law which govern the conditions of exercise of the right to reside in another member state. The conditions laid down in Directive 2004/38 did not have to be satisfied.

The parent who is the primary carer can claim a right of residency in cases where the child of a national of a member state who works or has worked in the host member state (migrant worker) is in education in the host member state. This is regardless of whether the primary carer is an EU or non-EU national.

The right of children of migrant workers to equal treatment in access to education applies only to children who 'are residing' in the member state in which one of their parents is or has been employed.

That right to reside in the member state lasts for as long as the children are in education and ends when the child reaches the age of majority. This is unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his/her education, in which case it extends until the child has completed all his/her education.

The right of residence of the children while in education together with the primary carer is not conditional on that parent having sufficient resources so as not to become a burden on the social assistance system of that member state and having comprehensive sickness insurance cover there.

The right of residence of the parent who is the primary carer for the child of the migrant worker is also not conditional on one of the child's parents having worked as a migrant worker in that member state on the date the child started in education.

So, what does this mean for local authorities?

Local authorities will have a duty to house both EU and non-EU nationals who are primary carers of children of a national of a member state who works or has worked in the UK, and where those children are in education in the UK. This duty will continue until the child has completed his/her education. This may be until the child reaches the age of majority, or longer, and exists for as long as the child needs the presence and care of the primary carer in order to be able to pursue and complete his/her education.

As both 'A2' and 'A8' nationals are now members of the EU, this duty will extend to primary carers of children of nationals from these countries, although will be subject to compliance by the 'worker' with the restrictions placed on them.