CJEU: Opinion of Advocate General Bot in case C-529/11 Alarpe and Tijani, 15 January 2013

(Free movement of persons - Directive 2004/38/EC - Right of permanent residence - Article 16 - Legal residence - Residence based on Article 12 of Regulation (EEC) No 1612/68)

In this case the British Upper Tribunal had sought the CJEU's preliminary ruling on the conditions under which the parent of an adult child pursuing his studies may be entitled to a right of residence under Article 12 of Regulation 1612/68, where both of them are third-country nationals who had previously been family members of a Union citizen and enjoyed the corresponding residence rights. The Upper Tribunal's questions referred particularly to criteria of dependency, residence in the parent's household and emotional support. Advocate General Bot bases his opinion on the Teixeira case of 23 February 2010, where the CJEU ruled that the right of residence of a parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority unless the child continues to need the presence and care of that parent in order to pursue and complete its studies. However, he considers that the Court should not answer the questions from the Upper Tribunal as the assessment of the child's need for the presence of its parent is a question of fact which falls within the exclusive jurisdiction of national courts.

The Upper Tribunal had also sought the CJEU's ruling on whether periods of residence based on Article 12 of Regulation 1612/68 could be taken into account for a later application for permanent residence by the child pursuing its studies and its primary caring parent. Advocate General Bot takes the view that such periods shall not be taken into account if they were completed on the sole basis of Article 12 of Regulation 1612/68 and the conditions of Article 7(1) of Directive 2004/38 were not satisfied. The Advocate General considers that the concept of "legal residence" derived from the CJEU's case law, which can lead to permanent residence after a certain number of years, is based on the conditions set out by Article 7(1) of Directive 2004/38 and that in this respect the presumption of integration, on which Regulation 1612/68 is based, is not relevant for the acquisition of the status of permanent residence. Advocate Bot finds that counting periods of residence under Article 12 of Regulation 1612/68 would be inconsistent with the provisions of Directive 2004/38 regulating the maintenance of the right of residence of family members of Union citizens when the requirements for that right cease: in such case, the periods completed by virtue of that right will be taken into account for permanent residence only if the persons concerned satisfy themselves the requisite conditions. Moreover, Article 12(3) of Directive 2004/38 specifically covers the situation of children who are enrolled at an educational establishment in the event that the Union citizen from which they derived their right of residence departs or dies. Children in such situation will maintain their right of residence only until completion of their studies. Finally, Article 18 of the same Directive excludes children in that situation from the acquisition of permanent residence when contemplating only family members of a Union's citizen referred to in Articles 12(2) and 13(2), but not in 12(3), as eligible for permanent residence. Counting the periods of residence under Article 12 of Regulation 1612/68 would hence create a different set of rules difficult to justify in Advocate Bot's view. He ends his reasoning stating that "it is not illogical to think that the importance of the rights conferred by the status of permanent residence, which, once acquired, confers an entitlement to social assistance which is unconditional, must have as its counterpart the rigour of the conditions laid down for its acquisition".

For the full text of the opinion, visit CJEU's website.

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