The impact of the judgments in Teixeira & Ibrahim Matthew Moriarty The AIRE Centre Brussels, 9 th July

The judgments: overview 2 Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department [2010] CJEU C-480/08; and London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department [2008] CJEU C-310/08  Ms Teixeria (a Portuguese national) and Ms Ibrahim (a Somali national) had sought UK homelessness assistance.  Ms Teixeira had worked in the UK but was no longer in the labour market and had not retained her worker status. Ms Ibrahim had come to the UK to join her husband, a Danish national who was working in the UK. He then stopped working and at the time of her application he had left the UK.  Both were denied homeless assistance on the basis that they did not have a ‘right to reside’ in the UK. However, the CJEU ruled that children of EU migrant workers should enjoy access to education on an equal basis with British children, which extends to ensuring that their primary carer[s] are actually able to reside with them.

The judgments: key passages 3 Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department [2010] CJEU C-480/08: 39. 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 [ECHR], 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.

The judgments: key passages 4 Maria Teixeira [2010] CJEU C-480/08: 58. … the travaux préparatoires to Directive 2004/38 show that it was designed to be consistent with the judgment in Baumbast and R… 59. 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).

The judgments: key passages 5 Maria Teixeira [2010] CJEU C-480/08: 60. 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*. [*i.e. the Citizenship Directive does not entitle Member States to make life harder for Citizens!]

The judgments: key passages 6 Maria Teixeira [2010] CJEU C-480/08: 61. 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.

The judgments: key passages 7 Maria Teixeira [2010] CJEU C-480/08: 67. … 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. … 70. 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.

The judgments: key passages 8 London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department [2008] CJEU C-310/08: [To be continued…]

Initial observations  This right is now found under Article 10 Regulation 492/11 (formerly Article 12 Regulation 1612/68).  It provides an important reminder that Directive 2004/38 is not the only source of residence rights.  BUT… the Union Citizen parent must have been a worker. Self-employed work doesn’t count (see e.g. the CJEU in C-147/11 Czop and C-148/11 Punakova). 9

The UK approach Regulation 15A of the UK’s Immigration (European Economic Area) Regulations 2006 [as amended] provides that: 15A. (1) A person (“P”) … is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria. … (3) P satisfies the criteria in this paragraph if— (a)P is the child of an EEA national (“the EEA national parent”); (b)P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and (c)P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom. 10

The UK approach (continued) Regulation 15A of the UK’s Immigration (European Economic Area) Regulations 2006 (as amended) provides that: … (4) P [is entitled to a derivative right to reside] if— (a)P is the primary carer of a person meeting the criteria in paragraph (3) (“the relevant person”); and (b)the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave. 11

NA (Pakistan) [2015] EWCA Civ 140: The UK Upper Tribunal had found, at paragraph 73, that: “… In Teixeira the Court of Justice made plain that it is not necessary for the child to be in education in the UK at a time when the EEA national parent is continuing to meet the condition that he is exercising Treaty rights in the host Member State. Having at paragraphs 50 and 73 reiterated previous jurisprudence that Article 12 applied as much to the primary carer of the child of a former migrant worker as to the child of a current migrant worker, at para 75 the [CJEU] stated that: “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”. 12

NA (Pakistan) [2015] EWCA Civ 140: The Court of Appeal’s referral to the CJEU: 29. … we concluded that the question whether Article 12 of Regulation 1612/68 is subject to an implied condition that the EU national parent must be in the host Member State when the child enters education in that state must be answered as a matter of principle, and that the answer is not acte clair. The question is left open by both the Regulation itself and the authorities. The answer to this question should be the same in whichever host Member State the EU citizen’s child is educated. 13

NA (Pakistan) [2015] EWCA Civ 140: The Court of Appeal has asked the CJEU: (1)Does an EU citizen have a right to reside in a host member state under Articles 20 and 21 of the TFEU in circumstances where the only state within the EU in which the citizen is entitled to reside is his state of nationality, but there is a finding of fact by a competent tribunal that the removal of the citizen from the host member state to his state of nationality would breach his rights under Article 8 of the ECHR or Article 7 of the Charter? (2)If the EU citizen in (1) (above) is a child, does the parent having sole care of that child have a derived right of residence in the host member state if the child would have to accompany the parent on removal of the parent from the host member state? (3)Does a child have a right to reside in the host Member State pursuant to Article 12 of Regulation 1612/68 EEC (now Article 10 of Regulation 492/2011/EU) if the child’s Union citizen parent, who has been employed in the host Member State, has ceased to reside in the host Member State before the child enters education in that state? 14

An absolute right to equal treatment? Article 10 of Regulation 492/11 provides that: 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. The CJEU (effectively) finds that this independent right includes equal access to socio-economic conditions – i.e. genuine equal treatment. Did it implicitly include such considerations for the ‘enjoyment of the substance of the child’s rights’ in Zambrano? 15

An absolute right to equal treatment? Ibrahim, paragraph 33: the right of the 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. Mr Yusuf, Ms Ibrahim’s EU citizen husband, worked from October 2002 to May 2003, with Ms Ibrahim arriving with their 3 existing children in February 2003; Ms Ibrahim separated from Mr Yusuf in 2004 and was entirely financially dependent on social assistance; Article 12 of Reg. 883/04 – by analogy with Article 12 of the directive – provided her and her children with an absolute EU right of residence for the duration of their education. See e.g. Brey, Saint Prix, Dano… Or Alimanovic (?!) 16

Q&A 17