Permanent right to reside: Lassal
Sarah Clarke gives details of some more positive caselaw from the European Court of Justice.
The full background to this case was set out in Bulletin 209. It concerns a French national who came to the UK in 1999 and worked from September 1999 to February 2005 when she returned to France for 10 months. She came back to the UK in December 2005 and claimed jobseeker’s allowance (JSA) from January to November 2006, when she claimed income support (IS) on the basis of pregnancy. Her claim was refused on the grounds that she did not have a right to reside in the UK. Her case eventually reached the Court of Appeal, where CPAG was given permission to intervene.
The main issue was whether the claimant had a permanent right of residence under Article 16 of Directive 2004/38/EC, which came into force on 30 April 2006, on the basis of five years’ lawful residence, in her case as a worker from September 1999 to February 2005. The DWP argued that Article 16 did not allow for periods of residence prior to the introduction of Directive 2004/38/EC to count. CPAG argued that periods of residence under the Directives in place prior to 30 April 2006 could be taken into account.1
The Court of Appeal reached a preliminary view that periods of residence under previous EC Directives should count towards the five years referred to in Article 16(1) of Directive 2004/38/EC. As the matter was not entirely clear, however, it decided to refer the following question to the European Court of Justice (ECJ):
Is Article 16(1) of Directive 2004/38/EC…to be interpreted as entitling an EU citizen to a right of permanent residence by virtue of the fact that she had been legally resident, in accordance with earlier Community law instruments conferring rights of residence on workers, for a continuous period of five years which ended prior to 30 April 2006?
The Belgian Government submitted observations to the ECJ in support of the UK Government’s position. The European Commission also submitted observations, supporting CPAG’s position.
The opinion of the Advocate General
The Advocate General (AG) issued her opinion on 11 May 2010.2Note that this is not the final decision of the ECJ and does not bind the Court to reach the same decision. The Court usually follows the AG’s opinion but is not obliged to.
The AG has recommended that the Court answer the question referred to in the following terms:
Article 16 is to be interpreted as meaning that a Union citizen who resided legally for a continuous period of five years in a host Member State, before expiry of the period for transposition of the Directive on 30th April 2006, has a right of permanent residence, in so far as she was not absent from that Member State for a period exceeding two consecutive years.
The reasoning takes into account the following issues.
1. Whether there are impermissible retroactive effects
Retroactive (retrospective) effect is where a measure takes effect from a point in time before its publication. It is not generally permitted, unless this is the clear intention of the legislation and the legitimate expectations of those concerned are respected.
Both the UK and Belgium argued that interpreting Article 16 so as to include residence rights prior to Directive 2004/38/EC would mean Article 16 would have retroactive effect. The AG makes the following points:
- The wording of Article 16(1) is inconclusive as to whether periods of residence prior to 30/4/06 can be taken into account.
- Article 17(1)(b) provides for a right of permanent residence for a worker who lives in the host member state for two years and becomes permanently incapable of work. This replaced Article 2(1)(b) Regulation 1251/70, which is in exactly the same terms. If it were the case that periods of residence served under previous Directives were not taken into account under Directive 2004/38/EC, then workers would lose rights accrued under regulation 1251/70. This cannot be the intention of the Directive which aims to consolidate and strengthen residence rights. Articles 16 and 17 are closely related, are similarly worded, are both in the Chapter which provides for a right of permanent residence, and should be interpreted in the same way.
- The UK relied on the case of Givane C-257/00, in which the ECJ held that a right of residence for members of a worker’s family under Article 3(2) Regulation 1251/70 can only arise where the two-year period of residence immediately preceded the worker’s death. The AG considered the case to be irrelevant, since Article 16 Directive 2004/38/EC is not based on a period of residence which takes place before the occurrence of a particular event. Indeed, if periods of residence prior to Directive 2004/38/EC were not taken into account, this would also mean that family members who accrued rights under Article 3(2) of Regulation 1251/70 would potentially lose them under its successor provision in Article 17(4)(a) Directive 2004/38/EC.
2. Does the period of residence have to fall after 30 April 2006?
The purpose of Article 16 is to promote social cohesion and strengthen the feeling of Union citizenship. It is clear that five years’ continuous residence is regarded as a sufficient degree of social integration for the Union citizen to demonstrate a right to a permanent right of residence in the host member state, and there is no reason why that period of residence has to fall before or after 30 April 2006.
The AG rejects the UK’s argument that only periods of residence completed under Directive 2004/38/EC itself can count towards acquiring the right under Article 16. The effect of this argument would have been that no right could be acquired under Article 16 until 30 April 2011 at the earliest. The AG holds that earlier repealed provisions have flowed into Directive 2004/38/EC so that there is continuity between them. This means that periods of residence completed under predecessor provisions are periods of legal residence for the purposes of Article 16. She also raises the issue of whether residence in accordance with national law is sufficient for the purposes of Article 16, but does not reach a conclusion on this. This issue is being addressed in other cases (see McCarthy v SSHD and Dias C-325/09).
3. If periods prior to 30 April 2006 are taken into account, would that prevent Article 16(4) from operating?
The AG also rejects the UK’s argument that where a person had completed five years’ residence and then left the UK for two years, when Directive 2004/38/EC came into force, Article 16(4) which provides that the permanent right of residence is lost following two years’ absence, could not operate. This was because the person would simultaneously gain and lose a right of permanent residence on 30 April 2006 and Article 16(4) only allows a right of residence to be lost once it has been gained. The AG holds that this is permissible providing that there is one ‘logical second’ when the person gains the right before losing it again. In the alternative, Article 16(4) should be applied in line with the purpose of the legislation, so that if a person has been absent from the host member state for over two years, a right of permanent residence does not arise.
The AG holds that there is nothing in the wording of Article 16 to prevent periods of residence which took place many years ago from counting towards a right of permanent residence. This could mean that a person who worked in the UK for five years but stopped working 15 years ago (eg, to look after children or a disabled relative) would have a permanent right of residence on 30 April 2006, so long as s/he has not left the UK for a consecutive period of two years in the interim.
4. Does it matter that the claimant would have lost her right of residence under previous directives?
The fact that the claimant would have lost her right of residence under Article 6(2) of Directive 68/360 and Article 6(2) of Regulation 1251/70 was not relevant because from 30 April 2006, the conditions for establishing a right of residence were no longer determined under the previous Directives and Regulations but under Directive 2004/38/EC.
5. Legitimate expectation
This interpretation of Article 16 does not offend against the ‘legitimate expectations’ of the member states. There was no legitimate expectation that a provision such as Article 16 would not be enacted, the rules on Union citizenship had existed since Maastricht in 1993, and the UK and Belgian governments had both voted in favour of Directive 2004/38/EC.
Although not binding on the ECJ, the AG’s opinion in this case is clear and unequivocal and there is every chance that it will be followed in the decision of the full court. In the meantime, residence rights established after 2 October 2000 should already be accepted by the DWP under national law. It is also arguable that in cases where the claimant is relying on residence rights prior to 2 October 2000 under EU law, the DWP should now accept this. If claims made on this basis are refused, the claimant should appeal pending the final outcome of Lassal, and ask for an interim payment to be made under regulation 2 Social Security (Payments on Account etc) Regulations 1988 (see the article on the ‘right to reside’ in Bulletin 213, p9).
Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. The UK Government has accepted as a matter of national law that periods of residence served under the Immigration (EEA) Regulations 2000, which came into force on 2 October 2000, can count towards a permanent right of residence under regulation 15 Immigration (EEA) Regulations 2006, because paragraph 6 of Schedule 4 to the 2006 Regulations provides for this. It did not accept, however, that residence prior to 2October 2000 could count, effectively excluding the claimant from qualifying.
- 2. Secretary of State for Work and Pensions v Taous Lassal Case C-162/09