CBTM10080 - Residence and Immigration: Residence - Right to reside on basis of child in UK education

Right to reside on basis of child in UK education

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

In February 2010 the ECJ delivered judgement in the cases of two women who, it had been decided by the UK, had no right to reside but who were the primary carers of the children of an EEA national parent and in UK education.

The ECJ held that the child of an EEA national parent who is or was a worker (employed or self-employed) in the UK has a right to UK education under Article 12 of Council Regulation 1612/68 and that confers on the child a right to reside in the UK. In order for the child to effectively exercise that right, it is necessary that the child’s primary carer in the UK also have a right to reside in the UK 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 UK.

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

• The child must have one EEA national parent;
• The EEA national parent must be, or have been, employed in the UK;
• The EEA national parent must have been resident in the UK on the date the child entered the UK education system, although they need not have been employed or self-employed on that date; and
• The child must have been entered into UK 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 national where the EEA national is only or had formerly been self employed only in the UK.

Note 2: In general the child’s right to education and so the primary carer’s right to reside in the UK 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 UK 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 national parent, it is not necessary that the EEA 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.