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Immigration
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Date: 19/04/2010 |
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Freedom of movement for EU workers and their families within Member States has long been established under EU law. Article 10 of the EC regulation provided that the members of the family of a migrant worker had the right to install themselves with that worker, irrespective of their nationality. wever, the 2004 directive on freedom of movement of EU citizens restricted that right. It provided that citizens only had the right to reside in another Member State if they were workers, students or if they had comprehensive sickness insurance cover and were economically self-sufficient and this restriction also applied to the family members of migrant workers.
The position of children of a migrant worker is covered by Article 12 of the EC regulation which gives them an independent right of residence in connection with their right of access to education. The European Court of Justice (ECJ) decision of Baumbast established in 2002 that Article 12 should be interpreted as meaning that the child of a migrant worker who is in education in the host Member State has an independent right of residence in that Member State, even if the migrant worker no longer resides or works there. It also established that the right of residence extends to the parent who is that child’s primary carer, regardless of the primary carer’s own immigration status.
What was not clear until the recent ECJ decisions of Ibrahim and Texeira in February 2010 is whether the right of residence for children and their primary carers under Article 12 of the EC regulation was affected by the restrictions introduced by the 2004 directive. The good news is that it is not. The ECJ confirmed in Ibrahim that the right of residence of the parent who is the primary carer of a child of a migrant worker who is in education is not conditional on that parent being economically self-sufficient.
The ECJ confirmed in Texeira that there was no age limit for rights conferred on a child by Article 12. The right of residence therefore continues until the child has completed his education. However, the parent’s right of residence ends when the child turns 18, unless the child continues to need the presence and care of that parent in order to be able to complete his education.