LB Harrow v Ibrahim C‑310/08 on reference from the Court of Appeal (LB Harrow v Ibrahim and another [2008] EWCA Civ 386. Our note here).
The question was whether:
(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;
Mrs Ibrahim is the wife of a Danish man, who worked for a period in the UK. Following an illness and a period on benefits, Mr I’s right to reside ended and he returned to Denmark. However, Mrs I and their four children, who had joined Mr I, remained in the UK and the children had been in school throughout. Mrs I applied as homeless and Harrow refused her as ineligible.
The Court of Appeal referred the following questions to the European Court:
(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;
OR
(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, 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?
On (1) and (2) the European Court found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091 and Case C‑7/94 Gaal [1995] ECR I‑1031, it was clear that a child’s right to reside under Art 12 was independent of Articles 10 and 11, regardless whether the parent who is a citizen of the union has ceased to be a migrant worker in the host state. A refusal to allow the parent with care to reside during the children’s education would deprive the children of their right under Art 12. In paragraph 23 of Gaal, the Court expressly stated that Article 12 of Regulation No 1612/68 contains no reference to Articles 10 and 11 of the regulation.
Further
as is apparent from the very wording of Article 12 of Regulation No 1612/68, the right to equal treatment in respect of access to education is not limited to children of migrant workers. It applies also to children of former migrant workers.
The right derived by children from Article 12 of Regulation No 1612/68 is also not dependent on the right of residence of their parents in the host Member State. It is settled case-law that Article 12 requires only that the child has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal, paragraph 27).
To accept that children of former migrant workers can continue their education in the host Member State although their parents no longer reside there is equivalent to allowing them a right of residence which is independent of that conferred on their parents, such a right being based on Article 12.
Directive 2004/38 did not alter Art 12, as contended by Harrow and the UK. Where that directive amended Art 10 and 11, it did so specifically, and the absence of specific address to Art 12 showed the intention of the European legislature. Indeed, the directive was intended to be consistent with Baumbast. There was no intention to limit Art 12 to a mere right to access to education. Directive 2004/38 has the stated purpose of strengthening the right of free movement, but if it replaced Art 12 in the same way as it did Art 10 and 11, then the Art 12 right would be more restricted that before.
On sufficient resources, there is no requirement in Article 12 for self sufficency and, following Baumbast, the Article must not be rendered ineffective.
The Court, in a case where it had to rule on whether children who were resident in the Member State in which their father, a national of another Member State, had been employed before returning to his State of origin were entitled under Article 12 of Regulation No 1612/68 to State assistance intended to cover the costs of their education, the maintenance of them and their dependants and sickness insurance, held, without ruling on the economic situation of the students in question, that the status of children of a worker who is a national of a Member State within the meaning of Regulation No 1612/68 implies, in particular, that it is recognised in European Union law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host Member State, that requirement applying afortiori where the persons covered by the provisions of that regulation are students who arrived in that State even before the age at which they had to attend school (Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 35).
Therefore
the answer to the first two questions is that, in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.
There was accordingly no need to answer the third question.
In short, where the children of a EU worker have entered education in the UK, then there is a continued right to reside for the children and the parent who is their carer (whether an EU citizen themselves or not) for the duration of the course of education, regardless whether the marriage to the EU worker subsists or if the EU worker remains in the UK. This is an independent right belonging to the children. There is no requirement for self-sufficiency on the part of the family or parent with care. The family therefore has a right to reside and eligibility for support, including housing.
Case C‑480/08 Texeira v LB Lambeth (on reference from Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088 (our report here) ) has also been decided. The basic issues on reliance on Art 12 were the same, with the additional questions being:
i) 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, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;
and
ii) 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 eighteen?
On i) the European Court found that it is sufficient that the child became installed in the host country at a time when a parent was a worker and there was no requirement that the child must have started education at a time when the parent was a worker.
On ii)
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, 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.
Overall, Ibrahim was a big case for Shelter and Nicola Rogers to bring and a significant decision. Naturally the Daily Mail didn’t like the result, apparently on the basis that Mrs Ibrahim has a 36 inch TV and a Playstation, this apparently being sufficient to make the law an ass. I wonder if the practical benefit of the decision for the Mail’s ex pat readership on the fringes of the Med had occurred to them?
Tiexiera was brought by Hanse Palomares, Adrian Berry and R. Gordon QC acting.