CJEU Judgment in Case 529/11, Alarpe and Tijani, 8 May 2013

Friday, October 4, 2013

(Freedom of movement of persons - Regulation (EEC) No 1612/68 - Article 12 - Divorced spouse of a national of a Member State who has worked in another Member State - Adult child pursuing his studies in the host Member State - Right of residence of parent who is national of a non-Member State - Directive 2004/38/EC - Articles 16 to 18 - Right of permanent residence of family members of a Union citizen who are not nationals of a Member State - Legal residence - Residence based on Article 12 above)

In this case the British Upper Tribunal had sought the CJEU's preliminary ruling on the conditions that must be met by a parent of a child who is more than 21 years old and who has obtained access to education on the basis of Article 12 of Regulation No 1612/68 if that parent is to continue to be entitled to a derived right of residence on the basis of that article. The Court responds that, under such conditions, the parent may continue to have a derived right of residence on the basis of Article 12 of Regulation No 1612/68 if the child remains in need of their presence and care in order to be able to complete his or her education. This must be assessed by national courts, which may take into account the age of the child, the existence of a common residence, or the financial or emotional support given by the parent.

In a second question, the Upper Tribunal asked the CJEU whether periods of residence in a host Member State completed by family members of a Union citizen who are not nationals of a Member State solely on the basis of Regulation No 1612/68 may be taken into consideration for the purpose of the acquisition of a right to permanent residence by those family members under Directive 2004/38, where the conditions for the acquisition of an entitlement to permanent residence, laid down of Article 7 of that Directive, are not satisfied. The Court answers to this question in the negative, as for the purposes of Directive 2004/38, only periods of legal residence which satisfy the criteria of Article 7 thereof may be taken into account to acquire a right of permanent residence.

Read the full text of the judgment on the website of the Court of Justice of the European Union.

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Dependant (Dependent person)
Family unity (right to)