Olaitan Ajoke Alarape and Olukayode Azeez Tijani v Secretary of State for the Home Department.
Date: 2013-05-08
24. First, it should be observed that reaching the age of majority has no direct effect on the rights conferred on a child by Article 12 of Regulation No 1612/68, as interpreted by the Court, given that, having regard to their subject-matter and purpose, both the right of access to education under that article and the child’s associated right of residence continue until the child has completed his or her education (Case C‑480/08 Teixeira [2010] ECR I‑1107, paragraphs 78 and 79).
25. Thus, since, according to the Court’s settled case-law, the scope of Article 12 of Regulation No 1612/68 extends also to higher education, the date on which a child completes his or her education may lie after reaching the age of majority (see Teixeira , paragraph 80 and case‑law cited).
26. Secondly, as regards a parent’s derived right of residence, it should be recalled that the Court has previously held that, where 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 Case C‑310/08 Ibrahim and Secretary of State for the Home Department [2010] ECR I‑1065, paragraph 30).
27. Similarly, the Court has held that the fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a Union citizen, and the fact that that parent has ceased to be a migrant worker in the host Member State are irrelevant in this regard (see Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 63, and Ibrahim and Secretary of State for the Home Department , paragraph 29).
28. Further, as regards the derived right of residence of a parent who cared for a child who has reached the age of majority and who is exercising the right to continue his/her education in the host Member State, the Court has held that, although that child is in principle assumed to be capable of meeting his or her own needs, the right of residence of that parent may nevertheless extend beyond that age, if the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education. It is for the referring court to assess whether that is actually the case in the main proceedings (see, to that effect, Teixeira , paragraph 86).
29. On the other hand, if the person who is entitled to the right of residence under Article 12 of Regulation No 1612/68 ceases to need the presence and care of that parent in order to be able to pursue and complete his or her education in the host Member State, that parent’s derived right of residence in that Member State comes to an end when that person reaches the age of majority (see, to that effect, Teixeira , paragraph 87).
34. If Article 16(2) of Directive 2004/38 is to apply, it is clear that 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 and, secondly, those family members have resided with him for the period in question.
35. As regards the conditions which must be satisfied by the Union citizen, it must be observed that, in relation to Article 16(1) of Directive 2004/38, the Court has held, after an examination of the aims of that directive and its overall and specific context, that the concept of legal residence implied by the words ‘have resided legally’ in Article 16(1) of Directive 2004/38 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, and 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) of Directive 2004/38 cannot be regarded as ‘legal’ residence within the meaning of Article 16(1) (Joined Cases C‑424/10 and C‑425/10 Ziolkowski and Szeja [2011] ECR I‑0000, paragraphs 46 and 47).
36. As regards 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, described in paragraph 34 of this judgment, 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.
37. It follows that, for the purposes of acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State under Article 16(2) of Directive 2004/38, only the periods of residence of those family members which satisfy the condition laid down in Article 7(2) of that directive may be taken into consideration.
38. Likewise, by referring to Articles 12(2) and 13(2) of Directive 2004/38, Article 18 of that directive defines the right of permanent residence which it establishes, since, first, that right of residence is available only to the family members of a Union citizen who are not nationals of a Member State and whose right of residence is retained in the event of the death of that citizen or in the event of divorce, annulment of marriage or termination of a registered partnership and, secondly, that right of residence is subject to the condition that the persons concerned can themselves demonstrate, before acquiring a right of permanent residence, that they satisfy the same conditions as those specified in Article 7(1)(a),(b) or (d) of Directive 2004/38.
42. First, as is stated in paragraphs 33 to 39 of this judgment, only periods of residence which satisfy the conditions laid down by Directive 2004/38 may be taken into consideration for the purposes of the acquisition by the family members of a Union citizen who are not nationals of a Member State of a right of permanent residence under that directive.
46. Further, it must be recalled that, on the one hand, the aim of Directive 2004/38 is to leave behind a sector‑by‑sector piecemeal approach to the right of freedom of movement and residence in order to facilitate the exercise of that right by providing a single legislative act which codifies and revises the instruments of European Union law which preceded that directive and that, on the other hand, that directive introduced a gradual system as regards the right of residence in the host Member State which, while reproducing, in essence, the stages and conditions set out in the various instruments of European Union law and case‑law preceding that directive, culminates in the right of permanent residence (see Ziolkowski and Szeja , paragraphs 37 and 38).
47. Accordingly, the phrase ‘earlier [than Directive 2004/38] European Union law instruments’, used in paragraph 40 of Lassal , must be understood as referring to the instruments which that directive codified, revised and repealed and not those which, like Article 12 of Regulation No 1612/68, were unaffected by that directive.