In Secretary of State for Work and Pensions v Taous Lassal [2009] EWCA Civ 157, the Court of Appeal made a reference to the European Court of Justice (the ECJ). The Court of Appeal asked the ECJ to resolve a question regarding the acquisition of a right of permanent residence in a Member State of the European Union.
Taous Lassal is a French woman who had resided in the United Kingdom from September of 1999. She left the UK for a period of ten months in February of 2005. She applied for income support in November of 2006. The Secretary of State for Work and Pensions refused her application on the basis that she only qualified for income support if she had a right of permanent residence in the UK, and Ms Lassal did not have such a right.
The question arose from Article 16 of the Directive 2004/38/EC of the European Parliament and the Council (known as the Citizens' Directive). By this Article people who are nationals of one of the countries making up the European Union (a Member State of the "EU") derive a right to live permanently in another Member State if they have lived there legally for a period of five years or more. By Article 16 (4) this right is lost if the person leaves the country in which he or she has resided, for a continuous period of two years or more.
Member States are required to make laws implementing European Union Directives within a fixed time limit. In the UK the Citizens Directive is implemented by the Immigration (European Economic Area) Regulations 2006. Regulation 15 of these Regulations says:
"15. —(1) The following persons shall acquire the right to reside in the United Kingdom permanently
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;"
The Regulations also provide that the right to permanent residence will only be lost if the person who has acquired it leaves the UK for a continuous period of two years, to comply with Article 16 (4) of the Directive. The Regulations came into force on 30 April 2006.
The question which the Court of Appeal requested the ECJ to answer was concerned with the calculation of the five-year period. Did the five years have to be completed after the date of implementation of the Directive (i.e. 30 April 2006) or could a period of five years' residence prior to that date be taken into account?
On 11 May 2010 the ECJ's Advocate General Verica Trstenjak provided a legal opinion to assist the Court in reaching its determination of this question.
The Advocate General's opinion does not bind the ECJ but the Court does usually follow such opinions in reaching its judgment. The Advocate General considered the arguments put forward by the government of the UK, the kingdom of Belgium and by the Child Poverty Action Group (the CPAG) on Ms Lassal's behalf.
The UK and Belgium heavily relied on the argument that the right to permanent residence had been created by the Citizens' Directive and that the Directive couldn't have retrospective effect. They argued moreover that any other interpretation could not make sense, since Article 16 (4) couldn't refer to the loss of a right which was not acquired until the date of the implementation of the Directive. You couldn't lose a right before you acquired it.
The CPAG said that there had always, under other Directives and Regulations issued by the EU, been a right for Citizens of the EU to reside permanently in other member states after a qualifying period of lawful residence. There was no retrospectivity involved in taking account of lawful residence completed prior to the implementation of the Citizens' Directive by individual Member States.
The Advocate General carefully considered each of these arguments, and applied the purpose of successive European Union free movement legislation in deciding the answer to the Court of Appeal's question. She concluded that Article 16 of the Citizens' Directive did not have retrospective effect, and that it did not need to have such an effect in order for a period of 5 years residence to be taken into account. The loss of the right of permanent residence similarly didn't occur only after the date of implementation. Her conclusion is that 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 30 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."
While it remains to be seen whether the ECJ itself will follow the Advocate General's opinion - if it does it seems likely that the UK will have to amend its Immigration (European Economic Area) Regulations 2006, or at least to ensure that the phrase "in accordance with these Regulations" as it occurs in Regulation 15 does not prevent a person who has resided legally in the UK for a continuous period of five years before the Regulations came into force on 30 April 2006 from having acquired a right of permanent residence.
This is a development which potentially could affect many nationals of the European Economic Area and their family members currently living in the UK. People who have the right of permanent residence created by the Citizens' Directive (and directly by the Immigration (European Economic Area) Regulations 2006) fulfil the requirements for eligibility for naturalisation as British citizens under the British Nationality Act 1981. They will also, when and if the amendments to the British Nationality Act brought in by the Borders, Citizenship and Immigration Act 2009 come into force, be entitled to rely upon this right of permanent residence as a form of "qualifying immigration status" from which they will be able to apply for UK citizenship.
EU law and nationality law are complex. Anyone who thinks that their immigration status may be affected by this opinion should seek professional legal advice. Gherson's team of solicitors and paralegals are ideally placed to provide advice on this or any other issue relating to immigration.