COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
MR CMG OCKELTON
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE WILSON
| Shirley McCarthy
|- and -
|Secretary of State for the Home Department
Susan Chan (instructed by Treasury Solicitors) for the Respondent
Hearing date : 1 May 2008
Crown Copyright ©
Lord Justice Pill :
The Directive and Regulations
"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."
Article 3(1) of the Directive, under the heading "Beneficiaries", provides:
"This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them."
"1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years."
"Host Member State" is defined in article 2(3) of the Directive as "the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence." The expression "host member state" appears frequently in the Directive.
"Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect."
Both parties seek to rely on preambular paragraphs 17 and 18 of the Directive:
"17. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
18. In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions."
"A right of permanent residence is [sic] be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of 5 years without becoming subject to an expulsion measure. The right of permanent residence, once obtained, may not be subject to any conditions. "
"Extended right of residence
(1) . . .
(2) A family member of . . . an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the . . . EEA national.
(3) . . ."
"Permanent right of residence
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;
. . . "
"All Union citizens residing on the basis of this Directive in the territory of a host Member State."
The Tribunal's Decisions
"We are, however, satisfied that neither EU law nor the Regulations affords the appellant any such additional rights or benefits."
The Tribunal held at paragraph 25:
"Our reason for this conclusion is that the appellant has not been residing in the United Kingdom during any of the 48 years of her life in the exercise of rights as an EEA national and has not, therefore, resided in the United Kingdom "in accordance with [the 2006] Regulations" or in accordance with the rights and benefits provided to EEA nationals by them. Rather, she has resided in the United Kingdom as a citizen of it and has derived such benefits as she may have received by reason of her United Kingdom nationality and not under Community law. The words of Regulation 15 are unequivocal and we are bound by them."
Paragraph 28 of the determination provides:
". . . In our judgment, however, the reference to the appellant residing in the country legally is a reference to the appellant residing in accordance with Community law; that is, in accordance with the Directive which gives Union citizens a right "to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect" – see Recital (1) of the Directive."
The Tribunal added, at paragraph 33:
"We are satisfied that the appellant in the instant case has a right to remain in the United Kingdom because she was and remains a United Kingdom national. In that sense, she was residing lawfully in the United Kingdom but that fact alone does not determine whether she is entitled to a right of permanent residence under the Directive or Regulations made pursuant to it."
"That, it seems to us, is sufficient to show that the provisions of the Directive are properly reflected in the regulations, which indicate that the period of five years in question is a period during which the applicant was exercising Treaty rights or was a spouse or family member of someone doing so. In the appellant's case he was not exercising any direct Treaty rights before Hungary, the country of which he was a national, became a member of the European Union."
Lady Justice Arden:
Lord Justice Wilson :