The Court of Appeal of England and Wales, which is hearing this case, asked the Court of Justice whether the interpretation of Article 12 of the Regulation adopted in the Baumbast judgment still applies following the entry into force of the new Directive 2004/38 relating to the rights of citizens of the EU and their family members, and whether the right of residence of the person who is the child's primary carer is now subject to the conditions laid down by the directive for the exercise of the right of residence, especially the requirement that the parent must have sufficient resources not to become a burden on the social assistance system.

In its judgments,  the Court of Justice points out that Article 12 of the regulation allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host Member State. Before the entry into force of Directive 2004/38,  when Article 10 of the Regulation concerning the right of residence was still valid law, the right of access to education laid down by Article 12 of the regulation was not conditional on the child retaining, throughout the period of education, a specific right of residence under Article 10: once the right of access to education has been acquired, the right of residence is retained by the child and can no longer be called into question. Article 12 of the regulation requires only that the child has lived with at least one of his or her parents in a Member State while that parent resided there as a worker. Clearly, therefore, Article 12 must therefore be applied independently of the provisions of EU law which expressly govern the conditions of exercise of the right to reside in another Member State.

The Court concluded that the right of residence of the parent who is the primary carer for a child of a migrant worker, where that child is in education in the host Member State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.