The Court of Justice of the European Union (CJEU) has ruled on residency rights in the EU in the joined cases C-424/10 Tomas Ziolkowski v Land Berlin and C-425/10 Barbara Szeja and Others v Land Berlin. The Court held that a right of permanent residence may be acquired only through periods of residence which satisfy conditions set out in EU law.
The case concerns two Polish nationals that were granted residency rights on humanitarian grounds and subsequently applied for permanent residence in Germany under the Directive 2004/38 following the accession of Poland to the European Union. This was refused on the basis that they were unemployed and could not prove that they had sufficient resources.
The Federal Administrative Court in Germany referred the case to the CJEU, and the Court was asked whether periods of residence which took place in the host Member State subject to national law could constitute periods of legal residence pursuant to European Union law. The second question that was posed to the CJEU was whether periods of residence in a non-EU member State should be considered when assessing the five-year residency period, necessary in order to acquire permanent residence.
The court considered the concept of legal residence within the meaning of Article 16 of the Directive and found it to be an "autonomous concept" and held that legal residence is to signify residence within the meaning of Article 7 of the Directive - in other words, sufficient resources and sickness cover. With regard to the second question, the CJEU held that although EU legislation does not operate on a retrospective basis (to encompass lawful residence prior to the accession of a Member State), prior residence under national law will be considered when such residence fulfils the conditions laid out in the Directive such as sickness insurance and sufficient resources.
Click here to see a guest piece on the case by Stephen Coutts on the Human Rights in Ireland blog. Stephen's doctoral research focuses on the relationship between EU citizenship and the area of freedom, security and justice in the EU.
Click here to see the judgment in full.