Migration, education and equality: perpetuating residence rights?

This article treats migration within the territory of the European Union (EU) Member States by Union citizens and their families; focusing on freedom of movement and education. Specifically, it will examine student maintenance grant eligibility in the host Member State, facilitative of student mobility in the EU, in accordance with primary and secondary EU legislation on freedom of movement of EU workers and of EU citizens. It is submitted that the interpretation of EU law by the Court of Justice of the European Union (Court of Justice) in recent cases lacks coherency and consistency. Primary provisions of EU law prescribe the right freely to move and reside for economically active EU citizens, and for EU citizens of independent means inclusive of students, who do not become an unreasonable burden on the welfare system of the host Member State. The principle of non-discrimination on grounds of nationality between Member States has played a pivotal role in the interpretation by the Court of Justice of EU citizenship free movement rights. Secondary EU law reinforces the principle of equality of treatment with nationals of the host Member State in relation to the education of the children of EU citizen economic migrant workers. The Court of Justice in consecutive rulings has interpreted EU law expansively confirming independent residence rights for children of the migrant worker who are in education. A derived right then ensues for the primary carer of such children, irrespective of his or her nationality. As a result of two recent and controversial rulings of the Court, both independent and derived residence rights exist in the absence of financial self sufficiency. This, in spite of further secondary EU legislation agreed to by Member States requiring economically inactive migrant EU citizens and family members to have sufficient resources so as not to become an unreasonable burden on the social assistance of the host Member State. Member States, moreover, have agreed expressly in the EU Citizenship Directive that they reserve the right not to pay maintenance grant /loan funding to EU citizen students who have crossed a border in order to study in that host Member State. These two recent rulings emphasise the importance accorded in EU law to the concept of the economically active EU migrant worker, despite a lack of sufficient means, and the associated Treaty principle of equality of treatment without discrimination on grounds of nationality for migrant EU workers. The ability to manage its own education system is stated expressly in the Treaties to be the responsibility of each individual Member State. The consequences of these rulings potentially will impact upon the public resources budgeted for schooling and thereafter higher University education inclusive of maintenance funding on the part of each host Member Stat