Case C-413/99 Baumbast [2002] ECR I.7091

• Baumbast was a German working in the UK. He ceased to work in the UK (went to wok outside EU) but his family remained and his children were still at school there.

  • Baumbast and his family were refused residency renewal.

• Court referred to ECJ question of whether persons admitted into the UK as members of the family of an EC migrant worker continue to enjoy the protection of Community law when he or she is no longer a migrant worker within the meaning of Article 39 EC.

• ECJ held that children, who are installed in a MS during their parent’s exercise of free movement rights, are allowed to stay to finish their educational courses (pursuant to Article 12 of Reg 1612/68), regardless of the fact that:

  • the parents of the children concerned have meanwhile divorced

  • that only one parent is a citizen of the Union and

  • that parent has ceased to be a migrant worker in the host Member State.

• The fact that the children are not themselves citizens of the Union are irrelevant in this regard.

• Also the parent who is the primary carer for the children may stay, regardless of the fact that she may not be an EU national and may have divorced her spouse under whose right she was able to reside in the MS initially.

  • Also, where a person loses their right to residency under the free movement of MS workers, they can still reside in a MS by virtue of Article 18 as citizens of the EU, subject to any limitations that are proportionate and do not breach EU law. 

ECJ

• The right of residence under Article 18 (1) EC Treaty was conferred directly on every citizen of the Union by virtue of a clear and precise provision of the EC Treaty.

• Thus it can be used even where Plaintiff is not a migrant ‘worker’ and thus cannot be deported once the person’s employment comes to an end.

• The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.

  • NB the case law on the right of children to remain in education is confirmed in Article 12(3) of Directive 2004/38