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Neutral Citation Number:
Reported Number:
File Number:	CIS 185 2008
Appellant:	Dias
Respondent:
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	21/07/2011
Date Added:	01/09/2008
Main Category:	Residence and presence conditions
Main Subcategory:	persons from abroad
Secondary Category:
Secondary Subcategory:
Notes:	CJEU judgment reported as [2012] AACR 36. Right to reside – whether a residence permit confers a right of residence – whether five years’ residence as a worker before 30 April 2006 confers a right of permanent residence under Article 18(1) of the EC Treaty The claimant came to the United Kingdom and worked continuously from January 1998 until the summer of 2002. On 13 May 2000 the Home Office issued the claimant with a residence permit as provided for in Article 4 of Directive 68/360/EEC. The permit included a statement that her stay in the United Kingdom was limited from 13 May 2000 to 13 May 2005 unless she obtained subsequent leave before the expiry of the permit. In the summer of 2002 the claimant went on maternity leave. From 18 April 2003 until 25 April 2004 she did not work. On 26 April 2004 the claimant returned to work and continued in employment until 23 March 2007. In March 2007 she claimed income support. The claim was disallowed by the Secretary of State for Work and Pensions on the ground that the claimant had no right of residence in the United Kingdom because she had ceased to be a worker and had not completed five years’ continuous residence so as to have a right of permanent residence under Article 16(1) of Directive 2004/38/EC. On appeal, the claimant was awarded income support on the ground that she had remained a worker from 18 April 2003 to 25 April 2004. On the Secretary of State’s appeal, the Social Security Commissioner held the appeal tribunal to have erred but decided that the claimant’s residence from 18 April 2003 to 25 April 2004 could be treated as a valid period of residence for the purposes of the right of permanent residence under Article 16(1) both because she had a residence permit during that period and because she had previously completed five years’ continuous residence as a worker and so had a right of residence under Article 18 of the European Community Treaty. The Secretary of State appealed against the Commissioner’s decision and the claimant cross-appealed. The Court of Appeal [2009] EWCA Civ 807 decided to stay the proceedings and to refer the following two questions to the European Court for a preliminary ruling: (1) can a European Union citizen acquire a permanent right of residence under Article 16(1) of Directive 2004/38 by being present in a Member State under a valid residence permit despite being voluntarily unemployed for a period; and (2) does five years’ continuous residence as a worker prior to 30 April 2006 give rise to a permanent right of residence under Article 18(1) of the Treaty if it does not give rise to a permanent right of residence under Article 16(1) of the Directive. Held, that: 1. it follows from Case C-408/03 Commission v Belgium [2006] ECR I-2647 that the grant of a residence permit to a national of a Member State is a declaratory measure serving to prove the individual position of a national of another Member State and is not a declaration of rights and, accordingly, periods of residence completed before 30 April 2006 solely on the basis of a residence permit validly issued, but without the conditions governing entitlement to any right of residence having been met, cannot be regarded as having been completed legally for the purposes of the acquisition of a right of permanent residence under Article 16(1) of Directive 2004/38 (paragraphs 42 to 57); 2. the Court has held that absences of less than two consecutive years from the host Member State after five years’ continuous legal residence do not affect the integration of the citizen concerned and so, by analogy, periods of residence of less than two consecutive years completed solely on the basis of a residence permit validly issued, but without the conditions governing entitlement to a right of residence having been satisfied, and after a continuous period of five years’ legal residence completed prior to 30 April 2006, are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38 (paragraphs 58 to 66). Editor’s note: The Court of Appeal subsequently allowed by consent both the Secretary of State’s appeal and the claimant’s cross-appeal.
Decision(s) to Download:	CIS 0185 2008-00.doc [2012] AACR 36bv.doc