Lassal: CPAG victory in the ECJ
CPAG intervened in the Lassal case to represent the interests of claimants. Sarah Clarke explains what the case is about.
The Advocate General’s opinion in this case was given on 11 May 2010 – see Bulletin 216. The court gave its judgment on 7 October 2010.
European Union (EU) nationals who have lived in the UK lawfully for five years have a permanent right of residence in the UK which they only lose if they leave the country for two years. This right is in Article 16 of Directive 2004/38/EC which was implemented on 30 April 2006. The Lassal case was about whether five years’ lawful residence prior to the implementation date could count for the purposes of Article 16. The Court was also asked to decide whether periods of temporary absence prior to 30 April 2006 prevented the claimant from gaining a permanent right of residence. CPAG intervened in this case to represent the interests of claimants.
The Court, in essence, upheld the Advocate General’s opinion, holding that:
- If only periods of residence after 30 April 2006 could be taken into account, a right of permanent residence could only be granted from 30 April 2011. That would deprive EU citizens of rights accrued under previous directives, which included, in some cases, permanent rights of residence. It would also be contrary to the purpose of the Directive and would deprive it of its effectiveness
- It would be incompatible with the reasoning behind Article 16 which is based on integration to only take periods of residence after 30 April 2006 into account.
- The Court’s interpretation does not result in a retroactive application of the Directive. It just gives present effect to situations which arose before the date of transposition. Provisions on citizenship are applicable as soon as they enter into force and must be applied to the present effect of situations arising previously – see D’Hoop Case C-224/98.
- It does not expressly follow from Article 16(4)1 that temporary absences of less than two years do not prevent a citizen from acquiring a permanent right of residence.However, the court had to consider not just the wording, but also the context and objectives of the rules. It has to give preference to the interpretation which ensures the effectiveness of the provision. The objectives of the Directive are to facilitate rights of free movement and residence. More specifically, the objectives of Article 16 are to promote social cohesion and the feeling of union citizenship. The travaux preparatoires2 refer to a two-year period of absence as being justified because it is enough to loosen the link with the host member state.
- 5. Article 16(4) must apply to periods of absence prior to 30 April 2006, otherwise member states would have to recognise rights of permanent residence where citizens had been absent for longer periods of time.
This case was important because, in some cases, people who have worked for long periods and lived in the UK ‘lawfully’ for many years before Directive 2004/38/EC came into force were being denied benefits. This particularly affected women who worked for long periods but then became economically inactive when they were bringing up families.
This case means that an EU national who has resided in the UK ‘lawfully’ for a continuous period of five years prior to 30 April 2006 has a permanent right of residence in the UK, provided s/he has not subsequently left the UK for a continuous period of two years. Someone who has lived and worked continuously in the UK for five years will count as having resided ‘lawfully’. Periods of time exercising other EU rights such as studying, being self-sufficient, being self-employed, or looking for work should also count as lawful residence for the purposes of accruing five years’ residence.
The next important issue will be whether other types of residence count as ‘lawful’. The Court did not need to consider this in Lassal since there was no dispute that the claimant had resided in the UK lawfully as a ‘worker’ for the purposes of EU law. This is a question which may be answered in the forthcoming cases of McCarthy Case C-434/09 and Dias Case C-329/09.
The judgment means that Article 16 of Directive 2004/38/EC has been transposed into UK law incorrectly, since regulation 15 of the Immigration (EEA) Regulations 2006 refers to five years’ continuous residence ‘in accordance with these Regulations’. The Regulations should therefore be amended totake this into account.
In CPAG’s view, the law also needs reform in other areas – in particular to ensure that women retain a right of residence in the UK while they are unable to work due to pregnancy.
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- 1. Which provides that two consecutive years’ absence from the host member state terminates a permanent right of residence.
- 2. These are the background papers and discussions which were used in the preparation of the Directive. They can be used to illuminate the purpose of the Directive where this is not clear.