London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department.

• Jurisdiction: European Union
• Celex Number: 62008CJ0310
• ECLI: ECLI:EU:C:2010:80
• Date: 23 February 2010
• Docket Number: C-310/08
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-310/08

London Borough of Harrow

v

Nimco Hassan Ibrahim

and

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))

(Freedom of movement for persons – Right of residence of a national of a non-member country who is the spouse of a national of a Member State, and of their children who are themselves nationals of a Member State – National of a Member State ceasing to work and leaving the host Member State – Enrolment of the children at a school – No means of subsistence – Regulation (EEC) No 1612/68 – Article 12 – Directive 2004/38/EC)

Summary of the Judgment

1. Freedom of movement for persons – Workers – Right of a worker’s children to access to education provided by the host Member State – Right of residence in order to attend general educational courses

(Council Regulation No 1612/68, Art. 12)

2. Freedom of movement for persons – Workers – Right of residence of family members – Children of a national of a Member State working or having worked in the host Member State – Parent who is the primary carer of those children

(Council Regulation No 1612/68, Arts 10 and 12; European Parliament and Council Directive 2004/38)

1. 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 No 1612/68 on freedom of movement for workers within the Community. The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union, and the fact that that parent has ceased to be a migrant worker in the host Member State are irrelevant in this regard.

(see para. 29)

2. The children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

The right conferred by Article 12 of Regulation No 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his or her education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his or her primary carer and, accordingly, that that person is able to reside with the child in that Member State during his or her studies. That article must therefore be applied independently of the provisions of European Union law which govern the conditions of exercise of the right to reside in another Member State. That independence of Article 12 from Article 10 of that regulation cannot but subsist in relation to the provisions of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96. A contrary conclusion would be liable to compromise the aim of integrating the migrant worker’s family into the host Member State, as stated in the fifth recital in the preamble to Regulation No 1612/68. For such integration to come about, the children of a worker who is a national of a Member State must have the possibility of undertaking and, where appropriate, successfully completing their education in the host Member State.

A condition that the persons concerned must have sufficient resources and comprehensive sickness insurance cover in the host Member State does not appear in Article 12 of Regulation No 1612/68, which cannot be interpreted restrictively and must not, under any circumstances, be rendered ineffective. Directive 2004/38 likewise does not make the right of residence in the host Member State of children who are in education and the parent who is their primary carer depend, in certain circumstances, on their having sufficient resources and comprehensive sickness insurance cover.

(see paras 31, 42-43, 52, 56, 59, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

23 February 2010 (*)

(Freedom of movement for persons – Right of residence of a national of a non-member country who is the spouse of a national of a Member State, and of their children who are themselves nationals of a Member State – National of a Member State ceasing to work and leaving the host Member State – Enrolment of the children at a school – No means of subsistence – Regulation (EEC) No 1612/68 – Article 12 – Directive 2004/38)

In Case C‑310/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Court of Appeal of England and Wales, Civil Division (United Kingdom), made by decision of 21 April 2008, received at the Court on 11 July 2008, in the proceedings

London Borough of Harrow

v

Nimco Hassan Ibrahim,

Secretary of State for the Home Department,

THE COURT (Grand Chamber),

composed of V. Skouris, President, J.N. Cunha Rodrigues (Rapporteur), K. Lenaerts, J.‑C. Bonichot and P. Lindh, Presidents of Chambers, C.W.A. Timmermans, A. Rosas, K. Schiemann, P. Kūris, E. Juhász, L. Bay Larsen, T. von Danwitz and A. Arabadjiev, Judges,

Advocate General: J. Mazák,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 2 September 2009,

after considering the observations submitted on behalf of:

– London Borough of Harrow, by K. Rutledge, Barrister,

– Ms Ibrahim, by N. Rogers, Barrister, instructed by S. Morshead, Solicitor,

– the United Kingdom Government, by V. Jackson, acting as Agent, and C. Lewis QC,

– the Danish Government, by R. Holdgaard, acting as Agent,

– Ireland, by D. O’Hagan and B. O’Moore, acting as Agents, and D. Conlan Smyth, Barrister,

– the Italian Government, by I. Bruni, acting as Agent, and W. Ferrante, avvocato dello Stato,

– the Commission of the European Communities, by D. Maidani and M. Wilderspin, acting as Agents,

– the EFTA Surveillance Authority, by N. Fenger, F. Simonetti and I. Hauger, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 October 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation 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 (OJ, English Special Edition 1968(II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1) (‘Regulation No 1612/68’), and of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28).

2 The reference was made in the course of proceedings between the London Borough of Harrow, on the one hand, and Ms Ibrahim and the Secretary of State for the Home Department, on the other, concerning the rejection of Ms Ibrahim’s application for housing assistance.

Legal context

European Union legislation

3 The fifth recital in the preamble to Regulation No 1612/68 reads as follows:

‘Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’.

4 Article 10 of Regulation No 1612/68 provided:

‘1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.

3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States.’

5 Article 11 of Regulation No 1612/68 provided:

‘Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.’

6 Articles 10 and 11 of Regulation No 1612/68 were repealed with effect from 30 April 2006 by Article 38(1) of Directive 2004/38.

7 The first paragraph of Article 12 of Regulation No 1612/68 provides:

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