Brussels, 14/09/2011 (Agence Europe) - Periods of residence in a host member state under its national law alone must be taken into account when calculating the length of residence of a citizen of the Union for the purposes of the acquisition of the right of permanent residence in that state. Such periods of residence before the accession to the Union of a citizen's state of origin must also be taken into account in the calculation for the purposes of the acquisition of that right.
In his conclusions relating to Case C-425/10, delivered on Wednesday 14 September, Advocate General Yves Bot suggests that the EU Court of Justice should interpret in this way the directive on the free movement of persons (2004/38/EC) on these two points in its response to the Federal Administrative Court, Germany. The latter has had an appeal referred to it from two Polish nationals legally residing in Germany for humanitarian reasons since the end of the eighties in line with German law. They had been refused the right of permanent residence in the country due to the fact that they did not have employment and were unable to show that they had sufficient resources to meet their needs.
Introducing his conclusions, the advocate general first of all points out the minimal provisions set out in the directive: - to qualify for the right of permanent residence, a citizen of the Union must be a worker or self-employed in the host member state or have, for himself and the members of his family, sufficient resources not to become a burden on the social assistance system of that state and comprehensive sickness insurance cover in that state; - however, the directive establishes the right of permanent residence, not subject to the preceding conditions, for citizens of the Union who have resided legally in the host member state for a continuous period of five years.
Developing his argument, the advocate general considers that the provisions laid down in the directive do not detract from more favourable national provisions (for example, when residence is granted on humanitarian grounds, so that the relevant person's resources are not taken into account). In his view, the directive implicitly validates these more favourable conditions under the mechanism for acquiring the right of permanent residence.
Along the same lines, citing case law, Advocate General Yves Bot considers that the provisions laid out in the directive must not be interpreted in a “restrictive” manner, in order not to compromise the objective of European legislature which is to “achieve, for Union citizens who fulfil the conditions for acquiring the right of permanent residence, full equality with national citizens”. He bases his argument on the principle whereby “after a sufficiently long period of residence in the host member state, a citizen of the Union will have developed close ties with that state and been integrated in its society”, which is particularly true when such links are created within the framework of human solidarity, which is true in the current case. After such a period, Yves Bot explains, this degree of integration of Union citizens “does not depend on whether their right of residence is derived from the law of the Union or national law”, or from the material situation of the citizens concerned, given that the situation - be it precarious or not - “has been taken into account and managed by the host member state for a period longer than that fixed by the Directive 2004/38 (i.e. 5 years), which was a clear manifestation of their integration”.
Under these conditions, the advocate general considers that the directive enacts rules which are binding on member states and which, once satisfied, cannot preclude recognition of the right of permanent residence, while the directive does not prevent states from enacting their own more favourable rules.
As to whether, during examination of requests for permanent residence, account must also be taken of periods of legal residence before the applicants' country became a member of the Union, Yves Bot replies in the affirmative, saying that, if this were not the case, they would be making a difference between these citizens and others considering them to be less Union citizens than others simply because they were taken in before their state of origin became a member of the Union. (F.G./transl.jl)