thanks to martin at cpag for alerting us to the advocate generals opinion in each of these (non benefit, but right to reside related) ECJ cases, both issued today ...

Teixeira -

'I propose that the Court should respond to the reference for a preliminary ruling from the Court of Appeal (Civil Division) as follows:

(1) Where a child of a Union citizen is in education in a Member State in which that Union citizen is or has been employed as a migrant worker, the parent who is the child’s primary carer enjoys a right of residence in the host Member State that is derived from Article 12 of Regulation (EEC) No 1612/68.

(2) The right of residence of that parent is not subject to a requirement that that parent should have sufficient resources and comprehensive sickness insurance cover.

(3) The right of residence of that parent is not subject to a requirement that that parent should have been employed as a migrant worker in the host Member State when the child first entered education. It is sufficient for the child to have installed itself in the host Member State during the exercise by a parent of rights of residence as a migrant worker in that State.

(4) The right of residence of that parent ends when the child reaches the age of majority, unless the circumstances of the individual case are such that it is appropriate for the child to be looked after personally by that parent beyond that point so as to ensure that the child is able to pursue and complete its studies.'

'I propose that the Court should answer as follows the questions referred by the Court of Appeal (England and Wales) (Civil Division) (United Kingdom):

The children of a citizen of the European 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 (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.

Article 12 of Regulation No 1612/68, in the circumstances of the case at hand, must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his or her nationality, to reside with them in order to facilitate the exercise of that right. The fact that the parent who is a citizen of the Union has ceased to be a migrant worker in the host Member State and subsequently left that Member State, the fact that the children and their primary carer are not self-sufficient and are dependent upon social assistance in the host Member State and the length of time the children have been enrolled in general educational courses in the host Member State are irrelevant in this regard.'

Having just picked up a case where this is relevant...When can we persuade Tribunals to deviate from CIS 1121 2007 which in the light of art 12 1612/68 never having been repealed over and above the AG's opinion here was clrealy wrong?

I'm not and EC lawyer, but I suspect the AG's opinion is not binding. So the answer is "when the ECJ says so".

Tue 23-Feb-10 11:50 AM by Martin Williams

The ECJ does say so: judgment in these cases was given today. Both cases won.

Ibrahim

Teixeira


So if a person is the primary carer of a child who is in education and the child is that of someone who has been a worker then that person has a right to reside.

Wow good work! That's the first time I've seen an ECJ decision with today's date on it.

Nevermind the fact that something's finally gone in an appellant's favour in a R2R case... (waves hands around)

cheers martin .... have also added a link to this thread from the home page to alert people

cheers - shawn

bbc's take on it ...

http://news.bbc.co.uk/1/hi/uk/8532868.stm

The ECJ reminds me of my late lamented brother in law. He was the osrt of person who answered questions put to him very literally. Thus if you asked him "Going on holiday this year, John?" he would answer "Yes". No details were volunteered.

The judgements in these cases create as many questions as they answer: mainly, because the right of residence so created is said to cease at the date the child reaches 18 or finishes full-time education.

We now need a further referral which asks the following questions:
Does the right of residence created according to these rules for the main carer count towards the five-year "lawful residence" period giving rise to a permanent right of residence under Article 16 of the Residence Directive?
Does a period of residence by a child in full time education count towards the five-year "lawful residence" etc etc?

If the answer is "yes" to either of these questions, then it really points up the difference between the wording of the Directive, which covers ANY lawful residence, and the domestic regulations which at least purportedly do not cover any right of residence arising outside the regulations or their predecessors.

I agree with ariadne2, this raises a number of significent questions.

What is CPAGs view on whether this right of residence counts towards the 5 year lawfully rule? Does the unreasonable burden argument come into this at all?

My feeling on this is that it would certainly count as legal residence un der the Directive - how could it be otherwise? - but not "in accordance with these regulsations" under EEA Regs. So it could count towards permanent residence under the Directive.

The problem is that the application of the Directive to pre-April 2006 periods is an issue in Lassal, where a question has been referred to the ECJ. The C of A has expressed a preliminary view that the Directive applies retrospectively.

The C of A also asked whether rights of residence pre-April 2006 came from any other EU law, and this is could be an example of this.

One other interesting point - does the ruling apply to A8 nationals who have not completed a year yet under WRS but are currently working and have a child in education? I think it would have to.....

time's law report @

http://business.timesonline.co.uk/tol/business/law/reports/article7041166.ece

Fri 26-Feb-10 02:31 PM by AGodfrey

In terms of the WRS issue, doesn't the child at some point have had to have been a dependant of a worker or somebody who has been been envoking a treaty right?

Is coming to work under the WRS exercising a Treaty right?