Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department.
Date: 2010-02-23
35. Article 12 of Regulation No 1612/68 confers on the children of a national of a Member State who is or has been employed in the territory of another Member State the right to be admitted to the latter State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if those children are residing in its territory.
36. In Baumbast and R  the Court held, in connection with the right of access to education set out in Article 12 of Regulation No 1612/68 and under certain conditions, that the child of a migrant worker or former migrant worker has a right of residence in order to attend educational courses in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence.
37. Thus the Court ruled, first, 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 and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard (see, to that effect, Baumbast and R , paragraph 63).
38. Second, the Court also ruled 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).
39. After 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.
42. For a person such as the appellant in the main proceedings, who ceased working and did not retain the status of worker, those conditions follow from Article 7(1)(b) of Directive 2004/38, which provides that nationals of a Member State are to have the right of residence on the territory of another Member State for a period of longer than three months without being economically active if they have sufficient resources for themselves and their family members and comprehensive sickness insurance cover in the host Member State.
45. Access to education thus depends on the child first being installed in the host Member State. Children who have installed themselves in the host Member State in their capacity of members of the family of a migrant worker, and also – as the Advocate General observes in point 39 of her Opinion – children of a migrant worker who, like Ms Teixeira’s daughter in the case in the main proceedings, have resided since birth in the Member State in which their father or mother is or was employed, may rely on the right of access to education in that State.
47. In paragraphs 21 to 24 of the judgment in Case C‑7/94 Gaal  [1995] ECR I‑1031, the Court rejected the 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 of 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 contains no reference to Articles 10 and 11.
48. 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).
50. Second, the right of children to equal treatment in access to education does not depend on the circumstance that their father or mother retains the status of migrant worker in the host Member State. As is apparent from the very wording of Article 12 of the regulation, that right is not limited to children of migrant workers, and applies also to children of former migrant workers.
51. In paragraph 69 of Baumbast and R , the Court moreover expressly stated that Article 12 of Regulation No 1612/68 seeks in particular to ensure that children of a worker who is a national of a Member State can, even if he has ceased to be employed in the host Member State, undertake and, where appropriate, complete their education in the latter Member State.
52. It is settled case-law that Article 12 of Regulation No 1612/68 requires only that the child has lived with his or her 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).
53. Article 12 of Regulation No 1612/68 must therefore be applied independently of the provisions of European Union law which expressly govern the conditions of exercise of the right to reside in another Member State.
59. Moreover, if Article 12 of Regulation No 1612/68 were to be interpreted as being limited, since the entry into force of Directive 2004/38, 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, maintaining it would appear superfluous after the entry into force of that directive. Article 24(1) of the 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, and it has been held that access to education falls within the scope of European Union law (see, inter alia, Case 293/83 Gravier  [1985] ECR 593, paragraphs 19 and 25).
60. Finally, it should be noted that, 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). In circumstances such as those of the main proceedings, to make the application of Article 12 of Regulation No 1612/68 subject to compliance with the conditions set out in Article 7 of that directive would have the effect that the right of residence of children of migrant workers in the host Member State in order to commence or continue their education there and the right of residence of the parent who is their primary carer would be subject to stricter conditions than those which appl ied to them before the entry into force of that directive.
66. On the other hand, the answers given by the Court to the first two questions referred for a preliminary ruling, relating to 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).
67. In any case, since the Court pointed out, in paragraph 74 of Baumbast and R , that in view of the context and the objectives of Regulation No 1612/68, in particular Article 12, that provision cannot be interpreted restrictively and must not be rendered ineffective, it cannot be argued on the basis of that judgment that the granting of the right of residence at issue is conditional on self-sufficiency, as the Court did not base its reasoning even implicitly on such a condition.
74. In the light of the case-law referred to in paragraph 37 above, it is enough that the child who is in education in the host Member State became installed there when one of his or her parents was exercising rights of residence there as a migrant worker. The child’s right of residence in that State in order to attend educational courses there, in accordance with Article 12 of Regulation No 1612/68, and consequently the right of residence of the parent who is the child’s primary carer, cannot therefore be subject to the condition that one of the child’s parents worked as a migrant worker in the host Member State on the date on which the child started in education.
78. It should be observed, first, 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.
79. Having regard to their subject-matter and purpose, the right of access to education under Article 12 of Regulation No 1612/68 and the child’s associated right of residence both continue until the child has completed his or her education.
80. Since, according to settled case-law, the scope of Article 12 of Regulation No 1612/68 extends also to higher education (see, inter alia, Joined Cases 389/87 and 390/87 Echternach and Moritz  [1989] ECR 723, paragraphs 29 and 30, and Gaal , paragraph 24), the date on which a child completes his or her education may lie after reaching the age of majority.
82. After recalling, in paragraph 24 of Gaal , that the principle of equal treatment set out in Article 12 of Regulation No 1612/68 requires that the child of a migrant worker must be able to continue his studies in order to complete his education successfully, the Court held, in paragraph 25, that Article 12 also encompasses financial assistance for those students who are already at an advanced stage in their education, even if they have already reached the age of 21 and are no longer dependants of their parents.
83. According to that judgment, to make the application of Article 12 of that regulation subject to an age-limit or to the status of dependent child would conflict not only with the letter of that provision but also with its spirit ( Gaal , paragraph 25).
85. In paragraph 73 of Baumbast and R , the Court held that the right of children of a migrant worker to pursue, under the best possible conditions, their education in the host Member State would be infringed if the person who is the primary carer were not able to reside with the child in that Member State during the period of education.
86. Although children who have reached the age of majority are in principle assumed to be capable of meeting their own needs, the right of residence of a parent who cares for a child exercising the right to education in the host Member State 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.
87. Consequently, the answer to Question 2(d) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.
Question 3