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The EU Court's Decision on the Families of Migrant Workers

By: Louise Smith, barrister - Updated: 26 Oct 2012 | comments*Discuss
 
Uk Migrant Worker Residence Eu Education

Dependant Family Members of Migrant Workers in the UK

To come to the UK as the dependent spouse, civil partner or unmarried partner of a migrant worker, a foreign national must generally show that:
  • They can support themselves and any dependents without relying on public funds; and,
  • They will have somewhere adequate to live.
An application may be made on similar terms for dependent children under the age of 18.

The Family Members of Migrant Workers from EU States

Migrant workers from the EU may have the right to bring their family to live with them in the UK – regardless of the nationality of the family members. To exercise this right the family members must again show that they can support themselves financially. The children of migrant workers from the EU have the right to be educated in any EU state where their parent is working.

The Rights of the Children of EU Migrant Workers

The European Court of Justice (ECJ) had previously decided that the child of a migrant worker, who attends a course of education in the country where their parent works, acquires an independent right to reside in that country. This right continues so long as the child is in education - even if the migrant worker leaves the country. Crucially, the child’s right to live in that country is extended to their primary carer.

The Facts behind the EU Decision

Two recent cases came before the Court of Appeal of England and Wales which raised questions regarding the entitlements of the family members of migrant workers.

One case related to a Somali national, Ms Ibrahim, who came to the UK with her husband, a Danish national, and their children who are all Danish. Ms Ibrahim’s husband subsequently left the UK and she is now entirely dependent on benefits. Two of the children attend state schools in the UK. Ms Ibrahim asked her local council for help in housing her children and herself. The application was refused on the basis that she was not lawfully resident in the UK.

The second case related to a Portuguese national, Ms Teixeira, who came to the UK with her husband to work. In 1991 they had a daughter who was born and later attended school in the UK. The parents subsequently divorced and in 2006 the father was awarded custody of their daughter. In 2006 the daughter began a child-care course at college and in 2007 she went to live with her mother. In April 2007 Ms Teixeira applied to the council for homeless person assistance. Her application was refused on the basis that she was no longer lawfully in the UK as she could not support herself financially. She appealed the decision arguing that she was the primary carer of a child enrolled on an education course.

The Court of Appeal asked the ECJ to decide both cases.

The Findings of the EU Case

The ECJ reiterated that a child’s right of residence in an EU country - on the basis of education - was independent of their parents’ right of residence. A child may acquire this right of residence provided that they have, at some point, lived in the EU country with one of their parents while that parent was a lawful worker.

The ECJ also pointed out that a child’s education-based right of residence does not carry a test that the child must be self-sufficient and able to support themselves without recourse to public funds. Further, the right continues so long as they are in education, even after they have reached the age of 18.

Conclusion - The Consequences of the Decision for the Families of Migrant Workers in the UK

This decision means that, under EU law, the UK has a duty to support financially a child entitled to education-based residence and that this duty extends to supporting the child’s primary carer. The fact that the primary carer might not otherwise have a right of residence in the UK is irrelevant.

The child’s entitlement to remain in the UK continues as long as they are on a course of education – therefore the child may still be entitled to financial support after they have reached the age of 18. However, the ECJ decided that the consequent right of residence – and entitlement to benefits – of the child’s primary carer will only continue, once the child has reached 18, if the child needs the continued presence and care of the parent to complete their education.

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