Judgment of the Court (Third Chamber) of 6 September 2012 (references for a preliminary ruling from the Upper Tribunal — United Kingdom) — Secretary of State for Work and Pensions v Lucja Czop (C-147/11), Margita Punakova (C-148/11)

(Joined Cases C-147/11 and C-148/11) (1)

(Regulation (EEC) No 1612/68 - Directive 2004/38/EC - Right of permanent residence - Social assistance benefits - Care of a child - Period of residence completed before the State of origin acceded to the European Union)

(2012/C 331/11)

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendants: Lucja Czop (C-147/11), Margita Punakova (C-148/11)

Re:

References for a preliminary ruling — Upper Tribunal — Interpretation of Article 12 of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition 1968 (II), p. 475) and Article 16(1) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Right of residence of a Polish national who moved to the United Kingdom prior to the accession of Poland, who, after accession, was self employed for less than a year and who is the primary carer of a child who entered general education after the period she was in self-employment

Operative part of the judgment

Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as conferring on the person who is the primary carer of a migrant worker’s or former migrant worker’s child who is attending educational courses in the host Member State a right of residence in that State, although that provision cannot be interpreted as conferring such a right on the person who is the primary carer of the child of a person who is self-employed.

Article 16(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a European Union citizen who is a national of a Member State which recently acceded to the European Union may, pursuant to that provision, rely on a right of permanent residence where he or she has resided in the host Member State for a continuous period of more than five years, part of which was completed before the accession of the former State to the European Union, provided that the residence was in accordance with the conditions laid down in Article 7(1) of Directive 2004/38.

(1)  OJ C 152, 21.5.2011.