Case C-200/02

Kunqian Catherine Zhu and Man Lavette Chen

v

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Immigration Appellate Authority)

(Right of residence – Child with the nationality of one Member State but residing in another Member State – Parents nationals of a non-member country – Mother’s right to reside in the other Member State)

Summary of the Judgment

Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 90/364 – Minor who is a national of a Member State, is covered by sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor and who is that minor’s primary carer – Right of residence, both for the minor and for the parent, in another Member State – Conditions for the minor to gain nationality – Not relevant

(Art. 18 EC; Council Directive 90/364)

Article 18 EC and Council Directive 90/364 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.

In that respect, the condition concerning the sufficiency of resources laid down in Directive 90/364 cannot be interpreted as meaning that the minor must possess those resources personally and may not use for that purpose those of a family member. Such an interpretation would add to that condition a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by Article 18 EC.

In addition, the application of the Community provisions at issue cannot be refused to the persons concerned on the ground that the parent who is the primary carer has created, by means of a stay in a Member State, a situation in which the child expected would be able to acquire the nationality of another Member State in order thereafter to secure for the child and for him or herself a long-term right to reside. Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality and it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.

(see paras 33, 36-37, 39, 47, operative part)

JUDGMENT OF THE COURT (sitting as a full Court ) 19 October 2004 (1)

(Right of residence – Child with the nationality of one Member State but residing in another Member State – Parents nationals of a non-member country – Mother's right to reside in the other Member State)

In Case C-200/02,

REFERENCE to the Court under Article 234 EC

from the Immigration Appellate Authority (United Kingdom), made by decision of 27 May 2002, received at the Court on 30 May 2002, in the proceedings

v

THE COURT (sitting as a full Court ),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R. Silva de Lapuerta and K. Lenaerts, Presidents of Chambers, C. Gulmann, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: A. Tizzano,

having regard to the written procedure and further to the hearing on 11 November 2003,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 18 May 2004,

gives the following

‘The right of residence for persons providing and receiving services shall be of equal duration with the period during which the services are provided.

Where such period exceeds three months, the Member State in the territory of which the services are performed shall issue a right of abode as proof of the right of residence.

Where the period does not exceed three months, the identity card or passport with which the person concerned entered the territory shall be sufficient to cover his stay. The Member State may, however, require the person concerned to report his presence in the territory.’

‘1.

The resources referred to in the first subparagraph shall be deemed sufficient where they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant and, where appropriate, the personal circumstances of persons admitted pursuant to paragraph 2.

Where the second subparagraph cannot be applied in a Member State, the resources of the applicant shall be deemed sufficient if they are higher than the level of the minimum social security pension paid by the host Member State.

2.‘1.

…’

‘1.

2.

3.

4.

5.

6.

7.Preliminary considerations

Directive 73/148

Article 18 EC and Directive 90/364

On those grounds, the Court (sitting as a full Court) hereby rules:

Skouris

Jann

Timmermans

Rosas

Silva de Lapuerta

Lenaerts

Gulmann

Schintgen

Colneric

von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 19 October 2004.

Registrar

President

R. Grass

V. Skouris