Secretary of State for Work and Pensions v Maria Dias.

• Jurisdiction: European Union
• Celex Number: 62009CC0325
• ECLI: ECLI:EU:C:2011:86
• Date: 17 February 2011
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-325/09

OPINION OF ADVOCATE GENERAL

TRSTENJAK

of 17 February 2011 (1)

Case C‑325/09

Secretary of State for the Home Department

v

Maria Dias

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom))

(Free movement of persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Taking into account periods of residence which ended before the transposition period for the directive expired on 30 April 2006 – Whether period of residence was lawful – Effects of a period of residence which does not constitute legal residence within the meaning of Article 16(1) of Directive 2004/38 and which follows a period of legal residence within the meaning of that provision)

1. In this reference for a preliminary ruling, the Court of Appeal (‘the referring court’) again poses questions to the Court of Justice concerning the interpretation of Article 16 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. (2) The first sentence of Article 16(1) of Directive 2004/38 provides that citizens of the Union who have resided legally for a continuous period of five years in the host Member State acquire the right of permanent residence there.

2. The present case has a close connection with Lassal, in which the Court delivered its judgment on 7 October 2010. (3) The present case also concerns the question to what extent in the context of Article 16 of Directive 2004/38 periods of residence which ended before the transposition period for that directive expired on 30 April 2006 are to be taken into account. However, the question raised by the present case goes further, whether a Union citizen can acquire a right of residence where she first resided legally for a continuous period of more than five years in the host Member State and that residence was followed by a period of slightly more than one year, in which admittedly there was no right of residence according to the provisions of European Union law then applicable, but the Union citizen held a residence permit issued and not revoked by the national authorities. The present case offers the Court the opportunity to develop its case-law concerning Article 16 of the directive.

I – Applicable law

A – European Union law (4)

1. Primary law

3. Article 12(1) EC provides:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

4. Article 18 EC provides that:

‘(1) Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

(2) If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.

(3) Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.’

2. Secondary law

(a) Directive 2004/38

5. Recitals 1 to 3 in the preamble to Directive 2004/38 are worded as follows:

‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.’

6. Recitals 17 and 18 in the preamble to Directive 2004/38 read as follows:

‘(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.

(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.’

7. Article 7 of Directive 2004/38 states:

‘Right of residence for more than three months

(1) All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

…

(3) For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed‑term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

...’

8. Article 14(3) of Directive 2004/38 provides:

‘An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State.’

9. Article 16 of Directive 2004/38 sets out the general rule as to the right of permanent residence. It provides:

‘General rule for Union citizens and their family members

(1) Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

...

(3) Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

(4) Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’

10. Article 24 of Directive 2004/38 provides:

‘Equal treatment

(1) Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

(2) By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’

11. Article 37 of Directive 2004/38 provides:

‘More favourable national provisions

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.’

12. Article 38 of Directive 2004/38 provides:

‘Repeal

(1) Articles 10 and 11 of Regulation (EEC) No 1612/68 shall be repealed with effect from 30 April 2006.

(2) Directives 64/221/EEC, 68/360/...