Official Journal of the European Union

C 225/13

(Case C-529/11) (<span class="super">1</span>)

(Freedom of movement for 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)

2013/C 225/20

Language of the case: English

Referring court

Parties to the main proceedings

Applicants: Olaitan Ajoke Alarape, Olukayode Azeez Tijani

Defendant: Secretary of State for the Home Department

Intervening party: AIRE Centre

Re:

Request for a preliminary ruling — Upper Tribunal (Immigration and Asylum Chamber) London — Interpretation of Article 12 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ 1968 L 257, p. 2) — Right of residence, following her divorce from a national of another Member State having exercised his right to free movement, of a national of a non-Member State responsible for care of her child, the latter being more than 21 years old and studying in the host Member State — Meaning of ‘parent who is primary carer for a child’ — Criteria for assessment

Operative part of the judgment

1.The parent of a child who has attained the age of majority and who has obtained access to education on the basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, may continue to have a derived right of residence under that article if that child remains in need of the presence and care of that parent in order to be able to continue and to complete his or her education, which it is for the referring court to assess, taking into account all the circumstances of the case before it;

2.Periods of residence in a host Member State which are completed by family members of a Union citizen who are not nationals of a Member State solely on the basis of Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, where the conditions laid down for entitlement to a right of residence under that directive are not satisfied, may not be taken into consideration for the purposes of acquisition by those family members of a right of permanent residence under that directive.

(<span class="super">1</span>) OJ C 370, 17.12.2011.