62020CJ0247_RES
Case C‑247/20
VI
v
The Commissioners for Her Majesty’s Revenue & Customs
(Request for a preliminary ruling from the Social Security Appeal Tribunal)
Judgment of the Court (Fifth Chamber), 10 March 2022
(Reference for a preliminary ruling – Right to move and reside freely within the territory of the Member States – Article 21 TFEU – Directive 2004/38/EC – Article 7(1)(b) and Article 16 – Child who is a national of a Member State residing in another Member State – Right of residence derived from the parent who is the primary carer of that child – Requirement of comprehensive sickness insurance cover – Child having a permanent right of residence for part of the periods concerned)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Conditions for the right of residence under EU law – Minor Union citizen with a right of permanent residence in the host Member State – Parent of that minor, a third-country national, residing in that Member State pursuant to Article 21 TFEU and who is the primary carer of him or her – No obligation for each of them to have comprehensive sickness insurance in order to retain their right of residence
(Art. 21 TFEU; European Parliament and Council Directive 2004/38, Arts 7(1)(b) and 16(1) and (2))
(see paragraphs 54, 56, 58-60, operative part 1)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Beneficiaries – Member of a worker’s family – Meaning – Ascendant not dependent on a Union citizen – Not included
(European Parliament and Council Directive 2004/38, Art. 2(2))
(see paragraph 57)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Conditions for the right of residence under EU law – Minor Union citizen with a right of permanent residence in the host Member State – Parent of that minor, a third-country national, residing in that Member State pursuant to Article 21 TFEU and who is the primary carer of him or her – Obligation on each of them to have comprehensive sickness insurance cover for periods prior to the acquisition of the right of permanent residence – Obligation fulfilled by their affiliation, free of charge, to the public sickness insurance system of the host Member State
(Art. 21 TFEU; European Parliament and Council Directive 2004/38, Art. 7(1)(b))
(see paragraphs 63, 65, 67, 69, 70, 72, operative part 2)
Résumé
VI and her husband are Pakistani nationals who live in Northern Ireland (United Kingdom) with their children. Their son, born in 2004, of Irish nationality, acquired a right of permanent residence in the United Kingdom on account of his legal residence for a continuous period of five years.
Although VI, who initially looked after their children, works and has been subject to tax only since April 2016, her husband worked and was subject to tax for all the periods at issue in the main proceedings, since both spouses had sufficient resources to maintain their family.
The Commissioners for Her Majesty’s Revenue & Customs took the view that, from May to August 2006 and from August 2014 to September 2016, VI was not covered by comprehensive sickness insurance and, consequently, did not have a right of residence in the United Kingdom, so that she was not entitled, in respect of those two periods, to either Child Tax Credit or Child Benefit.
The Social Security Appeal Tribunal (Northern Ireland), before which two appeals were brought in relation to those rights, asks the Court of Justice to determine to what extent the requirement to have comprehensive sickness insurance cover in the host Member State, laid down in Article 7(1)(b) of Directive 2004/38, (
1
) was applicable to VI and her son during the periods concerned and, if the requirement is met, whether affiliation, free of charge, to the public health insurance system of the host State, which they had, was sufficient to satisfy that requirement.
The Court holds that Article 21 TFEU, which enshrines the freedom of movement and residence of Union citizens, and Article 16(1) of Directive 2004/38, which covers the acquisition of a right to permanent residence, must be interpreted as meaning that neither the child, a Union citizen, who has acquired a right of permanent residence, nor the parent who is the primary carer of that child is required to have comprehensive sickness insurance cover, within the meaning of Article 7(1)(b) of that directive, in order to retain their right of residence in the host State. In contrast, as regards periods prior to the acquisition by a child, a Union citizen, of a right of permanent residence in the host State, both that child, where a right of residence is claimed for him or her on the basis of that Article 7(1)(b), and the parent who is the primary carer of that child must have comprehensive sickness insurance cover within the meaning of that directive.
Findings of the Court
As regards, first, periods after a child, a Union citizen, has acquired a right of permanent residence after residing legally for a continuous period of five years in the host Member State, the Court points out that that right is no longer subject (
2
) to the conditions of having, for himself or herself and his or her family, sufficient resources and comprehensive sickness insurance cover, applicable before the acquisition of such a right of permanent residence. (
3
)
As regards the parent who is a third-country national who is the primary carer of that child, the Court finds that he or she is not a ‘family member’, within the meaning of Directive 2004/38, and cannot therefore derive from it (
4
) a right of permanent residence in the host Member State where that child is dependent on his or her parent. The concept of ‘family member’, within the meaning of that directive, is limited, (
5
) as regards the relatives in the ascending line of a Union citizen, to ‘dependent direct relatives in the ascending line’ of that citizen.
That said, the right of permanent residence in the host Member State, conferred by EU law on a minor national of another Member State, must, for the purposes of ensuring the effectiveness of that right of residence, be considered as necessarily implying, under Article 21 TFEU, a right for the parent who is the primary carer of that minor Union citizen to reside with him or her in the host Member State, regardless of the nationality of that parent. It follows that the inapplicability of the conditions set out, inter alia, in Article 7(1)(b) of Directive 2004/38, following the acquisition by that minor of a right of permanent residence under Article 16(1) of that directive, extends, pursuant to Article 21 TFEU, to that parent.
Second, as regards periods before a child who is a Union citizen has acquired a right of permanent residence in the host State, it follows from the wording of Article 7(1)(b) of Directive 2004/38 and from the general scheme and purpose of that directive that not only the Union citizen but also his or her family members who live with that child in the host State, and the parent who is the primary carer of such a child, must be covered by comprehensive sickness insurance.
In that regard, it follows from that article, read in conjunction with recital 10 and Article 14(2) of the same directive, that, throughout the period of residence in the host Member State of more than three months and less than five years, economically inactive Union citizens must, inter alia, have comprehensive sickness insurance cover for themselves and their family members so as not to become an unreasonable burden on the public finances of that Member State. In the case of a child, a Union citizen, who resides in the host State with a parent who is his or her primary carer, this requirement is satisfied both where this child has comprehensive sickness insurance which covers his or her parent, and in the inverse case where this parent has such insurance covering the child.
In the case of a minor Union citizen, one of whose parents, a third-country national, has worked and was subject to tax in the host State during the period concerned, it would be disproportionate to deny that child and the parent who is his or her primary carer a right of residence on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of the host State. It cannot be considered that that affiliation free of charge constitutes, in the circumstances which characterise the case in the main proceedings, an unreasonable burden on the public finances of that State.
(
1
)	Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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 (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35). Article 7(1)(b) of that directive states that all Union citizens are to have the right of residence on the territory of another Member State for a period of longer than three months if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.
(
2
)	Under the last sentence of Article 16(1) of Directive 2004/38.
(
3
)	Laid down under Article 7(1)(b) of Directive 2004/38.
(
4
)	Article 16(2) of Directive 2004/38 provides that paragraph 1 thereof is to apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
(
5
)	Under Article 2(2) of Directive 2004/38.