Secretary of State for the Home Department v NA.
Date: 2016-06-30
34


In that regard, with respect to Article 13(2)(a) of Directive 2004/38, the Court has previously held that, where the Union citizen spouse leaves the host Member State, in order to settle in another Member State or in a third State, before the commencement of the divorce proceedings, the third-country national’s derived right of residence, on the basis of Article 7(2) of Directive 2004/38, comes to an end with the departure of the Union citizen spouse and can, therefore, no longer be retained on the basis of Article 13(2)(a) of that directive (see, to that effect, judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 62).
35


In such circumstances, the departure of the spouse who is a Union citizen has already brought about the loss of the right of residence of the spouse who is a third-country national and who remains in the host Member State. A subsequent petition for divorce cannot have the effect of reviving that right, since Article 13 of Directive 2004/38 mentions only the ‘retention’ of an existing right of residence (see judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 67).
36


In that context, the Court held that the Union citizen who is the spouse of a third-country national must reside in the host Member State, in accordance with Article 7(1) of Directive 2004/38, up to the commencement of divorce proceedings, if that third-country national is to be able to claim the retention of his or her right of residence in that Member State, on the basis of Article 13(2) of that directive (judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 66).
39


In that regard, it should be recalled that, in order to determine the scope of a provision of EU law, its wording, context and objectives must all be taken into account (judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 17).
41


Second, as regards the context of that provision, Article 13(2) of Directive 2004/38 constitutes a derogation from the principle that Directive 2004/38 confers rights of entry into and residence in a Member State not on all third-country nationals, but solely on those who are a ‘family member’, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national, that principle being established by the Court’s settled case-law (see, inter alia, judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 51).
54


The right of access of the children of migrant workers to education in the host Member State, under that provision, depends on the child concerned first being settled in the host Member State, and consequently children who have settled in that Member State in their capacity as family members of a migrant worker, as well as the children of a migrant worker who have resided since birth in the Member State in which their father or mother is or was employed, may rely on that right in that Member State (see, to that effect, judgment of 23 February 2010, Teixeira, C‑480/08, EU:C:2010:83, paragraph 45).
55


Article 12 of Regulation No 1612/68 seeks in particular to ensure that the children of a worker who is a national of a Member State can, even if that worker has ceased to be employed in the host Member State, undertake and, where appropriate, complete their education in the latter Member State (judgment of 23 February 2010, Teixeira, C‑480/08, EU:C:2010:83, paragraph 51).
56


As is apparent from the very wording of Article 12 of Regulation No 1612/68, that right is not limited to children of active migrant workers, but applies also to children of former migrant workers. It accordingly follows that the right of children to equal treatment with respect to access to education does not depend on the fact that their father or mother retains the status of a migrant worker in the host Member State (see, to that effect, judgment of 23 February 2010, Teixeira, C‑480/08, EU:C:2010:83, paragraph 50).
57


Further, the Court has held that the right derived by children from Article 12 of Regulation No 1612/68 is not dependent on the right of residence of their parents in the host Member State, since that provision requires only that the child has lived with his parents or one of them in a Member State while at least one of the child’s parents resided there as a worker (see, to that effect, judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department, C‑310/08, EU:C:2010:80, paragraph 40).
58


In that regard, 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 (judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department, C‑310/08, EU:C:2010:80, paragraph 41).
64


Finally, according to the Court’s case-law, the right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence, when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (judgment of 13 June 2013, Hadj Ahmed, C‑45/12, EU:C:2013:390, paragraph 46).
65


In circumstances such as those of the main proceedings, 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 parent who is their carer is at risk of losing her right of residence, if that parent were denied the possibility of remaining in the host Member State during the period of her children’s education, that might deprive those children of a right which is granted to them by the EU legislature (see, to that effect, judgment of 17 September 2002, Baumbast and R, C‑413/99, EU:C:2002:493, paragraph 71).
70


As a preliminary point, it must be recalled that, in accordance with the Court’s settled case-law, Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which is intended to be the fundamental status of nationals of the Member States (see judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31, and 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 41 and the case-law cited).
71


On that basis, the Court has previously held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens (judgment of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 42).
72


The criterion relating to deprivation of the substance of the rights conferred by citizenship of the Union is specific in character inasmuch as it relates to situations in which, although secondary law on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Union citizen, since the effectiveness of Union citizenship enjoyed by that Union citizen would otherwise be undermined, if, as a consequence of such a refusal, that Union citizen would, in fact, have to leave the territory of the European Union as a whole, thereby depriving that citizen of the genuine enjoyment of the substance of the rights conferred by that status (see judgment of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67).
75


As regards Article 21 TFEU, it must be recalled that, under that provision, the right to reside within the territory of the Member States is conferred on every citizen of the Union ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.
76


In particular, such limitations and conditions are those laid down in Article 7(1) of Directive 2004/38, and include the condition of having sufficient resources not to become a burden on the social assistance system of the host Member State during the period of residence, and having comprehensive sickness insurance cover, for the purposes of Article 7(1)(b) of that directive.
77


In that regard, the Court has previously held that the expression ‘have’ sufficient resources in that provision must be interpreted as meaning that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by the third-country national (judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 74).
79


Last, the Court has held that, where Article 21 TFEU and Directive 2004/38 grant a right to reside in the host Member State to a minor child who is a national of another Member State and who satisfies the conditions of Article 7(1)(b) of that directive, those same provisions allow a parent who is that national’s primary carer to reside with that national in the host Member State (see judgment of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 29).
80


The Court has held that a refusal to allow a parent, whether a national of a Member State or of a third country, who is the carer of a minor child, who is a Union citizen and who has a right of residence under Article 21 TFEU and Directive 2004/38, to reside with that Union citizen in the host Member State would deprive that citizen’s right of residence of any useful effect, since enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence (see judgments of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 45, and 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 28).