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By J
23/10/2009

A quick update from the ECJ

Readers might remember the case of LB Harrow v Ibrahim and another [2008] EWCA Civ 386 (noted by us here) where the Court of Appeal referred three questions to the ECJ concerning the rights of residents of family members of former Community workers.

The Advocate General (Mr Mazak) has now delivered his opinion in the case, which is available here. The Advocate General is not a Judge of the ECJ nor is his view binding on the Judges although, in practice, the ECJ usually follows the advice given. We will, therefore, have to wait for the final decision, but, for what it is worth, he has concluded:

(a) children of EU citizens who have installed themselves in a member state during the exercise by their parents of rights as residence as workers in that state are entitled to reside in the state in order to attend general educational courses;

(b) a parent who is the primary carer of those children – irrespective of his or her nationality – is entitled to reside with the children in order to allow the children to exercise that right. The fact that the parent who is a citizen of the EU is no longer working in that state and has left the state is irrelevant;

(c) it is similarly irrelevant that the children and their primary carer are not self-sufficient and are dependent on social assistance;

(d) the length of time that the children have been enrolled in their educational courses is also irrelevant.

Incidentally, counsel’s advice to Harrow on the then prospective Court of Appeal proceedings in this case is available online as part of memo here [link to .doc] and google web version here. It really is amazing what Google can find!

Posted in: Homeless
J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

3 Comments

  1. Marcin Tustin

    Well, I think the statistic that the court usually follow’s the A-G’s advice is a little misleading: that is because a lot of cases are referred to the ECJ where the law, and its application, are actually quite clear, and the A-G sets out his answer on the basis of established law.

    I think the A-G’s reasoning will fly, in this case, but this isn’t clear and settled law.

    Reply
  2. Stephen O'Neill

    The AG in Teixera v London Borough of Lambeth went much further:

    (1) Where a child of a Union citizen is in education in a Member State in which that Union citizen is or has been employed as a migrant worker, the parent who is the child’s primary carer enjoys a right of residence in the host Member State that is derived from Article 12 of Regulation (EEC) No 1612/68.

    (2) The right of residence of that parent is not subject to a requirement that that parent should have sufficient resources and comprehensive sickness insurance cover.

    Importantly,

    (3) The right of residence of that parent is not subject to a requirement that that parent should have been employed as a migrant worker in the host Member State when the child first entered education. It is sufficient for the child to have installed itself in the host Member State during the exercise by a parent of rights of residence as a migrant worker in that State.

    (4) The right of residence of that parent ends when the child reaches the age of majority, unless the circumstances of the individual case are such that it is appropriate for the child to be looked after personally by that parent beyond that point so as to ensure that the child is able to pursue and complete its studies.

    http://www.bailii.org/eu/cases/EUECJ/2009/C48008_O.html

    Reply
    • J

      Ah – I’d missed the AGs opinion in Texiera. Thanks Stephen.

      Reply

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