Baumbast and R v Secretary of State for the Home Department.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Macken
• ECLI: ECLI:EU:C:2002:493
• Docket Number: C-413/99
• Date: 17 September 2002
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61999J0413

Judgment of the Court of 17 September 2002. - Baumbast and R v Secretary of State for the Home Department. - Reference for a preliminary ruling: Immigration Appeal Tribunal - United Kingdom. - Freedom of movement for persons - Migrant worker - Rights of residence of members of the migrant worker's family - Rights of the children to pursue their studies in the host Member State - Articles 10 and 12 of Regulation (EEC) No 1612/68 - Citizenship of the European Union - Right of residence - Directive 90/364/EEC - Limitations and conditions. - Case C-413/99.

European Court reports 2002 Page I-07091

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Freedom of movement for persons - Workers - Right of the children of a worker to be admitted to the education provided by the host Member State - Right of residence in order to attend general educational courses - Parents' divorce, loss of the status of migrant worker by the only parent who is a citizen of the Union and children not themselves being citizens of the Union - Not relevant

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

2. Freedom of movement for persons - Workers - Right of the children of a worker to be admitted to the education provided by the host Member State - Right of residence in order to attend general educational courses - Right of residence granted to the parent carer irrespective of his nationality - Parents' divorce and loss of the status of migrant worker by the only parent who is a citizen of the Union - Not relevant

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

3. Citizenship of the European Union - Right to move and reside freely in the territory of the Member States - Citizen of the Union no longer enjoying a right of residence as a migrant worker - Right of residence - Direct application of Article 18(1) EC - Limitations and conditions - Application in compliance with the general principles of Community law, in particular the principle of proportionality

(Art. 18(1) EC)

Summary

$$1. 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 European Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the European Union are irrelevant in this regard.

( see para. 63, operative part 1 )

2. Where children have the right to reside in a host Member State 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, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.

( see para. 75, operative part 2 )

3. A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the European Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.

( see para. 94, operative part 3 )

Parties

In Case C-413/99,

REFERENCE to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

Baumbast,

R

and

Secretary of State for the Home Department,

on the interpretation of Article 18 EC and 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),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P. Jann, F. Macken (Rapporteur), N. Colneric and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet, V. Skouris, J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges,

Advocate General: L.A. Geelhoed,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Mr and Mrs Baumbast, Maria Fernanda Sarmiento and Idanella Baumbast, by N. Blake QC and L. Fransman QC, instructed by M. Davidson, Solicitor, and R, by N. Blake QC and S. Harrison, Barrister, instructed by B. Andonian, Solicitor,

- the United Kingdom Government, by J. E. Collins, acting as Agent, and P. Saini, Barrister,

- the German Government, by W.-D. Plessing and B. Muttelsee-Schön, acting as Agents,

- the Commission of the European Communities, by N. Yerrell and C. O'Reilly, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr and Mrs Baumbast, Maria Fernanda Sarmiento and Idanella Baumbast, of R, of the United Kingdom Government and of the Commission, at the hearing on 6 March 2001,

after hearing the Opinion of the Advocate General at the sitting on 5 July 2001,

gives the following

Judgment

Grounds

1 By order of 28 May 1999, received at the Court on 28 October 1999, the Immigration Appeal Tribunal referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Article 18 EC and 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).

2 Those questions were raised in proceedings between, first, Mr and Mrs Baumbast, Maria Fernanda Sarmiento and Idanella Baumbast (together the Baumbast family) and, second, R, on the one hand, and the Secretary of State for the Home Department (the Secretary of State), on the other, concerning the latter's refusal to grant them leave to remain within the territory of the United Kingdom.

Legal background

Community legislation

3 Under Article 17 EC:

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

4 Article 18(1) EC provides that every citizen of the Union is to have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the EC Treaty and by the measures adopted to give it effect.

5 Articles 10 to 12 of Regulation No 1612/68 provide as follows:

Article 10

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.

Article 11

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.

Article 12

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.

6 Under the first subparagraph of Article 1(1) of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26), Member States are to grant the right of residence to nationals of Member States who do not enjoy that right under other provisions of Community law and to members of their families as defined in Article 1(2) of that directive, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

7 The second subparagraph of Article 1(1) of Directive 90/364 provides that the resources referred to in the first...