about us adviser support claiming benefits contact us disability alliance disabled students support home links membership news policy and campaigns search shop site map

Right to reside as the parent and primary carer of a child in education

London Borough of Harrow v Nimco Hassan Ibrahim and the Secretary of State for the Home Department

Maria Teixeira v London Borough of Lambeth and the Secretary of State for the Home Department

These two European Court of Justice (ECJ) judgments concern whether, in certain circumstances, a person has a right to reside as the parent and primary carer of a child in education in a host Member State.

The court ruled that, in circumstances such as those in Ibrahim and Teixeira, the children of a national of a Member State who works or has worked in the host Member State, and the parent who is their primary carer, can claim a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68. This right is not conditional on that parent being self sufficient and having comprehensive sickness insurance.

The decision will affect future claims of income support (IS), income related employment and support allowance (ESA), income based jobseeker’s allowance (JSA), and state pension credit (SPC).

An EC national who claims one of these benefits will have a right to reside in GB under Article 12 of Regulation (EEC) 1612/68 if, at the date of claim to that benefit he or she satisfies all of the following:

1. They are the parent (or step parent) and primary carer of a child.
2. They or the child’s other parent are a citizen of another EEA State or Switzerland.
3. They are working or have worked as an employed person in the UK – the work must be as an employed person (not self-employed) and must not be‘marginal’ or of very short duration.
4. The child of the migrant worker was installed (or born) in the UK and had entered general education in the UK whilst the migrant worker also lived in the UK.
5. The child is still in general education in the UK and is under 18 - General education usually starts around age 5. It includes education up to and including university or similar courses, and vocational courses but does not include play school or pre-school schemes. An Article 12 right to reside can, exceptionally, continue beyond the point where the child/young person reaches 18 if he or she continues to need the presence and care of that parent in order to be able to complete their education.

The claimant is still required to pass the habitual residence test as a condition of receiving benefit.

A8/A2 nationals

The child of an A8 national migrant worker or an A2 national migrant worker will not gain rights under Article 12 of Regulation (EEC) No 1612/68 during the Accession period unless and until the migrant worker has completed the necessary 12 months registered or authorised work, or the migrant worker is otherwise exempt from the requirement to register or seek authorisation to work in GB.

The Department for Work and Pensions has issued guidance (Memo DMG 30/10).

More information

• memo dmg 30/10
• ibrahim judgment
• texeira judgment

back