Permanent Right to Reside Ziolkowski C-424/10

In Ziolkowski v Land Berlin Case C-424/10 and Szeja v Land Berlin Case C-425/10 Advocate General Bot has today given his opinion to the Court of Justice.

The opinion is not yet online as far as I can see so this is based on the press release. That is here: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-09/cp110089en.pdf Sorry I know that perhaps not a sound basis for a post….

If followed the opinion will be good news. It suggests that:

1) Periods of residence lawful under national law should be taken into account for the purpose of calculating whether a person has attained a permanent right of residence under the “5 year residence rule” in Article 16 Directive 2004/38.

2) Periods of residence lawful under national law PRIOR TO the accession of the EU citizen’s member state to the EU should also be taken into account.

The opinion in my view means that Okafor v SSHD [2001] EWCA Civ 499 in which the Court of Appeal held that periods of residence with a Teixeira type right of residence (eg as primary carer of child of former worker in education etc) did not count towards acquisition of a permanent right needs to be revisited- I think following the logic of AG Bot that such periods must count and arguably the CA decision is either no longer binding on this point or less senior Courts/Tribunals should refer to CJEU such cases.