Right to reside as the parent and primary carer of a child in education


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

Maria Teixeira v London Borough of Lambeth and the Secretary of State for the Home Department

17 July 2012

These two European Court of Justice (ECJ) judgments concern whether, in certain circumstances, a person has a right to reside as the parent and primary carer of a child in education in a host Member State.

The court ruled that, in circumstances such as those in Ibrahim and Teixeira, 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 host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68. This right is not conditional on that parent being self sufficient and having comprehensive sickness insurance.

The decision will affect future claims of income support (IS), income related employment and support allowance (ESA), income based jobseeker’s allowance (JSA), and state pension credit (SPC).

A European Union national who claims one of these benefits will have a right to reside in GB under Article 12 of Regulation (EEC) 1612/68 if, at the date of claim to that benefit he or she satisfies all of the following:

  1. They are the parent (or step parent) and primary carer of a child.
  2. They or the child’s other parent are a citizen of another EEA State or Switzerland.
  3. They are working or have worked as an employed person in the UK – the work must be as an employed person (not self-employed) and must not be‘marginal’ or of very short duration.
  4. The child of the migrant worker was installed (or born) in the UK and had entered general education in the UK whilst the migrant worker also lived in the UK.
  5. The child is still in general education in the UK and is under 18 - General education usually starts around age 5. It includes education up to and including university or similar courses, and vocational courses but does not include play school or pre-school schemes. An Article 12 right to reside can, exceptionally, continue beyond the point where the child/young person reaches 18 if he or she continues to need the presence and care of that parent in order to be able to complete their education.

The claimant is still required to pass the habitual residence test as a condition of receiving benefit.

Following these decisions the Government has made changes to the right to reside rules under The Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547).

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