London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department.
Date: 2010-02-23
28. It follows from Article 7(1)(b) and (d) and (2) of Directive 2004/38 that, whatever their nationality, the members of the family of a citizen of the Union who is residing in another Member State without being a worker or self-employed person there have the right to accompany or join that citizen, provided that he has sufficient resources for himself and the family members and has comprehensive sickness insurance cover in the host Member State.
29. The Court has previously held that the children of a citizen of the 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. 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, to that effect, Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraph 63).
30. The Court has also held that, where the children enjoy, under Article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parents who are their carers are at risk of losing their rights of residence, a refusal to allow those parents to remain in the host Member State during the period of their children’s education might deprive those children of a right which has been granted to them by the legislature of the European Union (see, to that effect, Baumbast and R , paragraph 71).
31. After further observing, in paragraph 72 of Baumbast and R , that Regulation No 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, the Court concluded, in paragraph 73 of that judgment, that the right conferred by Article 12 of that regulation on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies.
36. In paragraphs 21 to 24 of its judgment in Case C‑7/94 Gaal  [1995] ECR I‑1031, the Court explicitly rejected the German Government’s argument that there was a close relationship between Articles 10 and 11 of Regulation No 1612/68 on the one hand and Article 12 of that regulation on the other, so that Article 12 granted the right to equal treatment in access to education in the host Member State only to children who satisfied the conditions set out in Articles 10 and 11. 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.
37. It would be contrary to the context of Article 12 of Regulation No 1612/68 and the aims pursued by that article to make the exercise of the right of access to education depend on the existence of a separate right of residence of the child, assessed by reference to other provisions of that regulation (see, to that effect, Gaal , paragraph 25).
39. Second, 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.
40. 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).
41. 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.
43. 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. According to settled case-law, 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 (see, to that effect, Joined Cases 389/87 and 390/87 Echternach and Moritz  [1989] ECR 723, paragraph 21, and Baumbast and R , paragraph 69).
48. If Article 12 of Regulation No 1612/68 had been limited to conferring the right to equal treatment with regard to access to education without providing for any right of residence for the children of migrant workers, it would have become superfluous with the entry into force of Directive 2004/38. Article 24(1) of that directive provides that all Union citizens residing in the territory of the host Member State are to enjoy equal treatment with the nationals of that State within the scope of the Treaty, it not being in doubt that access to education falls within the scope of European Union law (see, inter alia, Case 293/83 Gravier  [1985] ECR 593, paragraph 19).
49. Moreover, according to recital 3 in the preamble to Directive 2004/38, the aim of that directive is inter alia to simplify and strengthen the right of free movement and residence of all Union citizens (see, to that effect, Case C‑127/08 Metock and Others  [2008] ECR I‑6241, paragraph 59). The application of Article 12 of Regulation No 1612/68 and Article 7(1)(b) and (d) and (2) of Directive 2004/38 to the children of migrant workers would have the effect that the right of residence of those children in the host Member State in order to commence or continue their education would be subject to stricter conditions than those which applied to them before the entry into force of Directive 2004/38.
52. It must be stated at the outset that there is no such condition in Article 12 of Regulation No 1612/68 and that, as the Court has already held, that article cannot be interpreted restrictively and must not, under any circumstances, be rendered ineffective ( Baumbast and R , paragraph 74).
54. 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 a fortiori 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 ( Echternach and Moritz , paragraph 35).
55. In the Baumbast and R  case Mr Baumbast, the father of the children whose right of residence in the host Member State under Article 12 of Regulation No 1612/68 was at issue, had resources which allowed him and his family not to be dependent on social assistance. None the less, the answers to the questions referred for a preliminary ruling concerning the right of residence of the children and their mother who cared for them were based not on their self-sufficiency but on the fact that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires the best possible conditions for the integration of the worker’s family in the host Member State and that a refusal to allow the parents caring for the children to remain in the host Member State during the period of their children’s education might deprive the children of a right granted to them by the European Union legislature ( Baumbast and R , paragraphs 50 and 71).