Opinion of the Advocate General — ECLI:EU:C:2009:641
Date: 2009-10-20
Language of the case: English
Subject matter: Citizenship of the Union;Right of entry and residence;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

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 – Children of a national of a Member State working or having worked in the host Member State – Parent who is the primary carer of those children (Council Regulation No 1612/68, Arts 10 and 12; European Parliament and Council Directive 2004/38) 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, the fact that only one parent is a citizen of the Union, and the fact that that parent has ceased to be a migrant worker in the host Member State are irrelevant in this regard. (see para. 29) 2. 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 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State. 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 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 cannot but subsist in relation to the provisions of 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. A contrary conclusion would be liable to compromise the aim of integrating the migrant worker’s family into the host Member State, as stated in the fifth recital in the preamble to Regulation No 1612/68. For such integration to come about, the children of a worker who is a national of a Member State must have the possibility of undertaking and, where appropriate, successfully completing their education in the host Member State. A condition that the persons concerned must have sufficient resources and comprehensive sickness insurance cover in the host Member State does not appear in Article 12 of Regulation No 1612/68, which cannot be interpreted restrictively and must not, under any circumstances, be rendered ineffective. Directive 2004/38 likewise does not make the right of residence in the host Member State of children who are in education and the parent who is their primary carer depend, in certain circumstances, on their having sufficient resources and comprehensive sickness insurance cover. (see paras 31, 42-43, 52, 56, 59, operative part)