C-413/99.
This complex case concerned the relationship between the notion of `citizenship of the Union' provided in Art. 17 or the ECTreaty, and the general right of residence provided in Art. 18. It concerned two separate families, members of which had been refused leave to remain in the UK
Mr and Mrs B -- a German man and a Colombian woman -- lived in the UK with their children. Mr B worked for German companies based outside the EU. Because Mr B was not working in the UK, the Home Office refused to extend his residence permit. Consequently it refused to extend the permits of Mrs B or their children, because under Regulation 1612/68 their rights of residence, if any, were derivative from his (as Mr B was an EU national, and the rest of the family were not).
Until their divorce, Mr and Mrs R -- a French man and an American woman -- lived and worked in the UK with their children. After they divorced, the Home Office refused to extend Mrs R's residence permit, although their children were granted indefinite leave to remain, in order to attend school -- as was their right as children of a worker from another member state.
The questions for the ECJ were, in essence:
As to the first question, the ECJ held that children who had begun their education in a particular member state were entitled to remain in that state, regardless of the marital or employment status of their parents. Such a conclusion was necessary because the Regulation 1612/68 requires that member states provide that the children on non-national workers be entitled to education ``in the best possible conditions''. The spirit of this provision is that children ought to be able to complete their education in the same member state in which they started it.
The second question -- whether the divorced parent of a child in education, who is not a national of an EU member state -- is entitled to remain was also answered in the affirmative, despite objections both from member states and the Commission. It requires a very purposive reading of Regulation 1612 to reach the same conclusion as the Court but, once it is accepted that it would be contrary to the best interests of the children to uproot them from their place of education, it must follow that the childrens' primary carer has a right of residence. No doubt considerations of respect for family life under the ECHR also played a part in the Court's decision.
Neither of the preceding two conclusions were particularly surprising. However, the ECJ also answered the third question affirmatively, concluding that Mr B -- who was not a worker nor economically active in the UK -- had a right of residence. This right derived from his status as a `citizen of the Union' in combination with the general right of residence granted by Art. 18. The UK and the Commission argued that Art. 18 was not intended to create free-standing rights, but the ECJ held that, since a `citizen of the Union' is entitled to the benefit of the Treaty, any limitation placed on the right of residence in Art. 18 must be proportionate and not disturb the right it created. The conclusion must be, therefore, that there is a general right of residence for all EU nationals in all member states, subject only to reasonable conditions imposed by the member states. These conditions could include that the person who wished to take up residence would not be a burden on the state, so Art. 18 does not create a right of residence for people who are unable to support themselves.
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