Opinion of the Advocate General — ECLI:EU:C:2013:9
Date: 2013-01-15
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 — Judgment of the Court (Second Chamber), 8 May 2013 1. Freedom of movement for persons — Workers — Right of residence of family members — Right of children of a worker to obtain access to education available in the host Member State and associated right of residence — Child reaching the age of majority — No effect — Divorce of parents or loss of status as migrant worker by the one parent who is a Union citizen — No effect (Council Regulation No 1612/68, as amended by Directive 2004/38, Art. 12) 2. Freedom of movement for persons — Workers — Right of residence of family members — Right of the parent of a child who has reached the age of majority and obtained access to education to continue to have a derived right of residence in the host Member State — Permissible where the child needs the parent’s presence and care — Assessment by the national court (Council Regulation No 1612/68, as amended by Directive 2004/38, Art. 12) 3. Freedom of movement for persons — Workers — Right of residence of family members — Family member not being a national of a Member State — Whether periods of residence based solely on Article 12 of Regulation No 1612/68 where the requirements laid down by Directive 2004/38 are not satisfied should be taken into consideration — Not permissible (Council Regulation No 1612/68, Art. 12; European Parliament and Council Directive 2004/38, Art. 7(1) and (2)) 1. See the text of the judgment. (see paras 24-27) 2. The parent of a child who has attained the age of majority and who has obtained access to education on the basis of Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community as amended by Directive 2004/38, may continue to have a derived right of residence under that article if that child remains in need of the presence and care of that parent in order to be able to continue and to complete his or her education, which it is for the referring court to assess, taking into account all the circumstances of the case before it. (see paras 28, 31, operative part 1) 3. Periods of residence in a host Member State which are completed by family members of a Union citizen who are not nationals of a Member State solely on the basis of Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Directive 2004/38, where the conditions laid down for entitlement to a right of residence under Directive 2004/38 are not satisfied, may not be taken into consideration for the purposes of acquisition by those family members of a right of permanent residence under that directive. The acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State is dependent, in any event, on the fact that, first, the Union citizen himself satisfies the conditions laid down in Article 16(1) of that directive, namely that he has resided legally for a continuous period of five years in the host Member State and, secondly, those family members have resided with him for the period in question. As regards, first, the conditions which must be satisfied by the Union citizen, the concept of legal residence should be construed as meaning a period of residence which complies with the conditions laid down in that directive, in particular those set out in Article 7(1) thereof. Consequently, a period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in Article 7(1) cannot be regarded as legal residence within the meaning of Article 16(1) of Directive 2004/38. As regards, secondly, the acquisition of a right of permanent residence by the family members of a Union citizen who are not nationals of a Member State, the requirement of residence with that citizen in the host Member State for the period concerned implies that those family members necessarily and concurrently have a right of residence under Article 7(2) of Directive 2004/38, as family members accompanying or joining that citizen. It follows that, for the purposes of that acquisition, only the periods of residence of those family members which satisfy the condition of accompanying or joining in the host Member State a Union citizen who himself satisfies the conditions laid down in Article 7(1)(a), (b) or (c) of Directive 2004/38 may be taken into consideration. Consequently, the fact that the family member of a Union citizen who is not a national of a Member State has resided in a Member State solely on the basis of Article 12 of Regulation No 1612/68 cannot have any effect on the acquisition of a right of permanent residence under Directive 2004/38. (see paras 34-37, 39, 40, 48, operative part 2)