CBTM10080 - Residence and Immigration: Residence - Right to reside on basis of child who is an EEA or Swiss national or in UK education]

Note a customer must have pre settled status for this to apply.

Right to reside on the basis of a child in UK education

Council Regulation (EEC) 1612/68 - Article 12 and Court of Justice of the European Union (CJEU) Cases Ibrahim and Teixeira

In February 2010 the CJEU delivered judgement in the cases of two women who, it had been decided by the United Kingdom, had no right to reside but who were the primary carers of the children of an EU citizen parent in United Kingdom education.

The CJEU held that the child of an EU citizen parent who is or was a worker (employed; not self-employed) in the United Kingdom has a right to remain in education in the United Kingdom under Article 12 of Council Regulation 1612/68 and that confers on the child a right to reside in the United Kingdom. In order for the child to effectively exercise that right, it is necessary that the child’s primary carer in the United Kingdom also has a right to reside in the United Kingdom for the duration of the child’s education and since the residence rights of both the child and the primary carer arise directly from Article 12 Council Regulation 1612/68, they are not conditional on either the child or the child’s primary carer being self-sufficient in the United Kingdom.

The EU has an agreement (the European Economic Area (EEA) Agreement) with EEA-EFTA States (Norway, Iceland, and Liechtenstein) and an agreement with Switzerland (the Free movement of Persons Agreement), which confers similar rights of EU citizens and nationals of these countries moving within the EEA-EFTA States and Switzerland.

However, the following circumstances must exist in order for this right to arise -

  • The child must have one EEA or Swiss national parent;
  • The EEA or Swiss national parent must be, or have been, a worker in the United Kingdom; and
  • The child must have been in United Kingdom formal education. This means compulsory schooling: so primary and secondary school and sixth form or non-advanced further education up to the child’s eighteenth birthday.

Note 1: No right to reside would arise for the primary carer of a child of an EEA or Swiss national where the EEA or Swiss national is only, or had, formerly been self-employed only in the United Kingdom.

Note 2: In general, the child’s right to education, and so the primary carer’s right to reside in the United Kingdom, comes to an end once the child turns eighteen, even if the education continues beyond that date. However, where there are compelling circumstances which mean the child continues to need the care of the primary carer in order to continue in education beyond the age of eighteen then the primary carer’s right to reside in the United Kingdom will extend until the child completes education. ‘Compelling circumstances’ may include, for example, a physical or mental illness or disability of the child in education.

Note 3: While it is essential to this right to reside that the child has an EEA or Swiss national parent, it is not necessary that the EEA or Swiss parent is the primary carer of the child in education. The primary carer’s and indeed the child’s nationality are not relevant once the circumstances set out above are met.

Note 4: This same right now arises under Article 10 of Regulation (EU) 492/2011 which came into force on 5th April 2011. Regulation (EU) 492/2011 was introduced to amend and codify its predecessor (Regulation 1612/68) which had been amended many times.

Note a customer must have pre settled status for this to apply.

Right to reside on the basis of being the primary carer of a child who is an EEA or Swiss national

The Court of Justice of the EU, in case C-200/02 (Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department) found that ‘a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, has a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.’

Therefore, a third country national can have a right to reside in the UK where they are the primary carer of a child who:

  1. is an EEA or Swiss national;

  2. would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period;

  3. holds sufficient resources to prevent them, and their primary carer, from becoming a burden on the social assistance system of the UK; and

  4. has Comprehensive Sickness Insurance.

This is reflected in Regulation 16 (paragraph 2) of the Immigration (European Economic Area) Regulations 2016.

These requirements do not apply where the child has acquired permanent residence in the UK.

The Court of Justice of the EU further clarified in case C247/20 (VI v The Commissioners for Her Majesty’s Revenue & Customs) that:

  1. A child who is an EU citizen, and who acquired the right of permanent residence in the host State, is not required to have Comprehensive Sickness Insurance in order to retain their right of residence. Their primary carer is not required to have Comprehensive Sickness Insurance in those circumstances either.

  2. A child who is an EU citizen, as well as their primary carer, are required to have Comprehensive Sickness Insurance for any periods before the child acquires permanent residence in the host State, in order to maintain their right of residence there.

Therefore, a third country national has a right to reside where they are the primary carer of a child who:

  1. is an EEA or Swiss national; and

  2. has permanent residence under the Residence Directive 2004/38/EC and the Immigration (EEA) Regulations 2016 or settled status under the EU Settlement Scheme.

The Court of Justice of the EU also found, in case C247/20, that ‘affiliation to the public sickness insurance system’ of the host State constitutes Comprehensive Sickness Insurance. For this reason, HMRC considers the condition to have Comprehensive Sickness Insurance as met, where the customer meets HMRC’s ordinary residence condition.