Whether people enjoy rights to reside under EU law is an issue with which European and domestic courts continue to grapple. Readers of the Bulletin may remember that in Ireland applicants of certain social welfare benefits are required to show they have a right to reside lawfully in the State in order to satisfy the habitual residence condition applied by law.
CJEU
The Court of Justice of the European Union (Court) has ruled on permanent residence in a case with repercussions for other EU nationals in a similar position. The question in Secretary of State for Work and Pensions v. Dias C-325/09 was whether a permanent right of residence existed where five years of legal EU residence were followed by a period of residence which did not constitute legal residence under EU law and were then followed a second period of legal residence. This arose before 30 April 2006; the EU Citizens' Directive transposition (incorporation into domestic member state law) date.
The claimant was a Portuguese national who resided as a worker for over five years in the UK, left work when she had a child, returned to work and then left again, this time applying for social welfare. Her application for welfare was refused. This triggered litigation on the issue of whether the initial period of not working negated acquisition of a permanent right to reside.
The Court observed that EU law provided that a permanent right of residence could be lost through over two consecutive years of absence. The Court reasoned that a period of less than two years with a domestic residence permit did not affect a right of permanent right of residence. They emphasised that the right of permanent residence could only be acquired from the date of transposition, although periods of legal residence before that date could be taken into account (Secretary of State for Work and Pensions v. Lassal C-162/09).
It is worth noting that the Court took the opportunity to reiterate previous case law which provided that a residence permit is a declaratory but not a constitutive document. They were clear that this works both ways. Lack of residence documentation will not prove lack of residence rights where such exist; but nor will possession of residence documentation demonstrate rights of residence where none exist.
English Courts
Meanwhile, in JS v. Secretary of State for Work and Pensions the English Court of Appeal has found that a French national who stopped agency work while pregnant did not enjoy a right to reside under EU law. She was accordingly ineligible for an English welfare benefit called income support. The Court held that the EU Citizens' Directive was an exhaustive codification of circumstances in which EU workers retain a right to reside when not working. The Claimant fell outside those circumstances. Moreover the UK Supreme Court had made clear in Patmalniece v. Secretary of State for Work and Pensions that any indirect discrimination caused by application of a right to reside test was objectively justified by a need to protect the public purse.
In Okafor v. Secretary of State for the Home Department, the English Court of Appeal rejected submissions that a Nigerian widow of a deceased Dutch national possessed a permanent right to reside. His deceased spouse had not acquired a permanent right to reside by the date of her death. The fact that the UK immigration authorities had not taken expulsion measures under EU law and permitted the widow and his two children to continue to reside in the UK did not mean that the family was residing legally under EU law.
However the Court did hold that the widow and his children could enjoy rights of residence for so long as the children were at school. They made this finding under the EU Citizens' Directive and following Teixeira v. Secretary of State for the Home Department C-480/08.
Readers may also wish to refer generally to the website of Garden Court Chambers. This is an excellent online resource produced by an English barristers' chambers. Housing, immigration and social welfare bulletins are available.