ECJ rules on right of residence of parent caring for child of migrant worker

A parent caring for a migrant worker's child who is in education in the UK has a right of residence, the European Court of Justice has ruled.

Ruling in London Borough of Harrow v Nimco Hassan Ibrahim (case C-310/08) and Maria Texeira v London Borough of Lambeth (case C-480/08), the ECJ also said that this right of residence is not conditional on the parent having sufficient resources not to become a burden on the member state’s benefits system.

In the Ibrahim case, Ms Ibrahim, a Somali national, arrived in the UK in 2003 to join her husband, a Danish citizen who was working legally in the UK. He then claimed incapacity benefit between June 2003 and March 2004, when he was declared fit to work. He then left the UK and the couple separated.

Ms Ibrahim was never self-sufficient and depends entirely on benefits. In January 2007 she applied for housing assistance for herself and her four children. That application was rejected on the basis that only persons with a right of residence under EU law could make such an application, and that neither Ms Ibrahim nor her husband were resident in the UK under EU law. Ms Ibrahim then appealed this decision.

In Texeira, Ms Texeira, a Portuguese national, arrived in the UK in 1989 with her husband, also a Portuguese national, and worked there until 1991. Their daughter was born in the UK. The couple were subsequently divorced, but both remained in the UK.

From 1991 to 2005, Ms Texeira worked intermittently while her daughter went to school. In 2007, she applied for housing benefit. Her application was rejected on the ground that she did not have a right of residence in the UK, since she was not in work and was not therefore self-sufficient. Ms Texeira challenged the decision on the basis that she had a right of residence because of her daughter’s continuing education.

In its judgements, the ECJ pointed out that Article 12 of the Community regulation on freedom of movement for workers allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host member state. This right applies even if the parent working in the state is no longer part of the family or if the parent caring for the child does not have their own individual claim to live in the UK.

The ECJ also found 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 having sufficient resources not to become a burden on the social assistance system of the host member state”.

The court also said there was no age limit for rights conferred on a child by Article 12. “The right of access to education and the child’s associated right of residence continue until the child has completed his or her education,” it found.

The parent’s right of residence could therefore continue after a child reaches the age of majority (18 in the case of the UK) where “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”.