R2R ... Dias update

Advocate General has given their opionion in the Dias case

Background -  relates to the Court of Appeal’s judgment in Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807 (31 July 2009) - the Secretary of State’s appeal against Commissioner Rowland’s decision in CIB/185/2008

The Court refered 2 questions to the ECJ -

- If a European Union citizen, present in a Member State of which she is not a national, was, prior to the transposition of Directive 2004/38/EC, the holder of a residence permit ... but was for a period of time during the currency of the permit voluntarily unemployed, not self-sufficient and outside the qualifications for the issue of such a permit, did that person by reason only of her possession of the permit, remain during that time someone who resided legally in the host Member State for the purpose of later acquiring a permanent right of residence under Article 16(1) of Directive 2004/38/EC.

- if five years’ continuous residence as a worker prior to 30 April 2006 does not qualify to give rise to the permanent right of residence created by Article 16(1), such continuous residence as a worker instead gives rise to a permanent right of residence pursuant to Article 18(1) of the EU Treaty that provides ‘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.’

Advocate General says -

‘121. In summary, it can be concluded that a period of residence of a Union citizen in a host Member State, which is not based on Directive 2004/38 or its predecessor provisions, but only on a residence permit granted by the national authorities, does not constitute legal residence within the meaning of Article 16(1) of that directive and cannot therefore be taken into account for the acquisition of a right of permanent residence. It is however open to the Member States to provide for a rule according to which such periods are taken into account.

122. If a Union citizen has however resided before 30 April 2006 in accordance with the conditions of the predecessor provisions to Directive 2004/38 legally and for a continuous period of more than five years in the host Member State, a right of permanent residence under Article 16 of Directive 2004/38 also comes into force where that residence was followed by another period of residence which, while not legal residence within the meaning of Article 16(1) of Directive 2004/38, took place on the basis of a valid residence permit issued by the national authorities.’

Link to opinion