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Neutral Citation Number:
Reported Number:
File Number:	CIS 4299 2007
Appellant:	SSWP
Respondent:	Lassal
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	23/05/2008
Date Added:	09/06/2008
Main Category:	European Union law
Main Subcategory:	free movement
Secondary Category:	Residence and presence conditions
Secondary Subcategory:	right to reside
Notes:	Reported as [2011] AACR 33. European Union law – free movement of workers – right of permanent residence pursuant to Article 16(1) of Directive 2004/38/EC – whether period of five years completed before 30 April 2006 to be taken into account – effect of absence of less than two years after completion of that period The claimant entered the United Kingdom in January 1999 in order to look for work and from September 1999 to February 2005 she was working or seeking work. It was common ground between the parties to the main proceedings that she was a “worker” for the purposes of European Union law from January 1999 to February 2005. In February 2005 she left the United Kingdom to visit her mother in France, where she stayed for ten months. In December 2005, she returned to the United Kingdom where she sought work. From January to November 2006 she received jobseeker’s allowance. In November 2006 she claimed income support on the basis that she was pregnant. That claim was refused on the ground that she had no right to reside in the United Kingdom and was therefore to be treated as not habitually resident and so, as a “person from abroad”, had an applicable amount of nil. Her appeal to an appeal tribunal was allowed on the ground that she had a permanent right of residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006, which implemented the provisions of Directive 2004/38 in the United Kingdom with effect from 30 April 2006. Article 16 of that Directive provides that European Union citizens who have resided legally for a continuous period of five years in the host Member State shall have a right of permanent residence there. Article 16(4) of the Directive states that the right of permanent residence will be lost only through absence from the host Member State for a period exceeding two consecutive years. The Secretary of State appealed to a Social Security Commissioner and then to the Court of Appeal. It was common ground in those proceedings that, although “right to reside” for the purposes of income support was not expressly defined, the right of permanent residence provided for in Article 16 of Directive 2004/38 constituted a right to reside for those purposes. The Court of Appeal stayed the proceedings and referred the case to the Court of Justice of the European Union for a preliminary ruling on the question whether continuous periods of five years’ residence completed before 30 April 2006 must be taken into account for the purposes of the acquisition of the right of permanent residence and, if the answer to that were in the affirmative, whether absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence, affected the acquisition of the right of permanent residence pursuant to Article 16(1). Held, that: 1. the purpose of Directive 2004/38 was to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that was conferred directly on Union citizens by the Treaty and in particular to strengthen that right, so that Union citizens cannot derive less rights from that Directive than from the instruments of secondary legislation which it amends or repeals: Case C-127/08 Metock and Others [2008] ECR I-6241 cited (paragraphs 30 to 32); 2. it would be contrary to that purpose to take into account only continuous periods of five years’ legal residence commencing after 30 April 2006 for the purposes of the acquisition of a right of permanent residence, as it would mean that such a right could be granted only from 30 April 2011, and such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with EU law instruments pre-dating 30 April 2006 of any effect for the purposes of the acquisition of that right of permanent residence (paragraphs 35 and 36); 3. an interpretation to the effect that only continuous periods of five years’ legal residence ending on 30 April 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38 was also contrary to the purpose and effectiveness of that Directive. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) subject to the integration of the citizen of the Union in the host Member State and it would be incompatible with the integration-based reasoning behind Article 16 of that Directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after 30 April 2006 (paragraph 37); 4. the taking into account of periods of residence completed before 30 April 2006 did not give retroactive effect to Article 16 of Directive 2004/38, but simply gave present effect to situations which arose before the date of transposition of that Directive, bearing in mind that the provisions on citizenship of the Union were applicable as soon as they entered into force and therefore they must be applied to the present effects of situations arising previously: Case C-224/98 D’Hoop [2002] ECR I-6191 cited (paragraphs 38 and 39); 5. consequently, for the purposes of the acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38, continuous periods of five years’ residence completed before the date of transposition of that Directive, namely 30 April 2006, in accordance with the earlier EU law instruments, must be taken into account (paragraph 40); 6. it would be contrary to the effectiveness and purpose of Directive 2004/38 and the general scheme and spirit of Article 16 if Article 16(4) of Directive 2004/38 were not to apply to continuous periods of five years’ legal residence completed before 30 April 2006 and it was clear from the analysis above that Article 16(4) must necessarily apply to those periods and that absences from the host Member State of less than two consecutive years occurring after the five-year periods of continuous residence but before 30 April 2006 were not such as to affect the link of integration of the citizen of the Union concerned (paragraphs 52 to 57); 7. accordingly, absences from the host Member State of less than two consecutive years which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date did not affect the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 (paragraph 58).
Decision(s) to Download:	CIS 4299 2007-00.doc [2011] AACR 33ws.doc