MDB and Others (Article 12, 1612/68) Italy: UTIAC 2 Jun 2010

TIAC (i) In London Borough of Harrow v Ibrahim Case C-310/08 and Maria Teixeira v London Borough of Lambeth Case C-480/08 the European Court of Justice ECJ confirmed the principle established in the Baumbast Case C-413/99 [2002] ECR I-7091, namely that in order to confer on a child a right of residence Article 12 of Regulation 1612/68 requires only that he has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker.
(ii) Although simply seeking employment may be sufficient to make an individual a worker in Union law for a limited period, it is not enough to engage Article 12, since this provision requires that the parent concerned is someone who is or has been employed in the territory of another Member State.
(iii) If there is a parent who meets the requirement of employment, then his child can acquire an Article 12 right of residence. But under the Baumbast principle such a right of residence for a child can only start to run from the date he or she begins in education; it cannot commence from the child’s date of birth.(The same is true in respect of the derived right of residence of a parent carer of such a child).
(iv) On Baumbast principles, a child in education can continue to have an Article 12 right of residence even if the said parent later ceases to be a worker.
(v) In a case concerned with an EEA decision the tribunal judge is obliged by s.84(1)(d) of the Nationality, Immigration and Asylum Act 2002 to decide whether the decision breaches any of the appellants’ rights under the Community Treaties in respect of their entry to or residence in the United Kingdom; see also s.109(3). Where the decision is a refusal to issue a permanent residence card that may necessitate, in the event that refusal is found correct, considering whether the appellant was entitled nonetheless to an extended right of residence.

Citations:

[2010] UKUT 161 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 84(1)(d) 109(3)

Jurisdiction:

England and Wales

Citing:

CitedBaumbast and Another v Secretary of State for the Home Department ECJ 17-Sep-2002
The first applicant, his wife and her children had been granted leave to stay in the UK. At the time the leave was withdrawn the children were settled in schools, and were granted indefinite leave. The second applicant was the mother of children who . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 19 August 2022; Ref: scu.416346