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CJEU right to reside judgment – adult child in education
The CJEU has handed down its latest decision on the basis of right to reside derived from Article 12 of EC Regulation 1612/38 – ie where the child of an EEA worker is in full-time education, the child’s primary carer (regardless of immigration status) has a derived right of residence. On baillii at http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/2013/C52911.html&query=Free+movement+of+persons&method=phrase
One of its two findings was that
The parent of a child who has attained the age of majority and who has obtained access to education on the basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community as amended by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, may continue to have a derived right of residence under that article if that child remains in need of the presence and care of that parent in order to be able to continue and to complete his or her education, which it is for the referring court to assess, taking into account all the circumstances of the case before it.
Does this mean that tribunals must now disapply reg 15A Immigration (European Economic Area) Regulations 2006, as that only allows a primary carer a derivative right of residence until the child reaches 18?
Does this mean that tribunals must now disapply reg 15A Immigration (European Economic Area) Regulations 2006, as that only allows a primary carer a derivative right of residence until the child reaches 18?
I wouldn’t say they are disapplying that provision- they are simply finding a right of residence directly on the basis of Article 12 of EU Reg 1612/68 (or now Article 10 of 492/2011)- just as they did in all Teixeira/Baumbast/Ibrahim etc type cases prior to Reg 15A being inserted.
Reg 15A isn’t wrong on this point- it just does not go far enough. So it does not need to be disapplied.