RM (Zimbabwe) v Secretary of State for the Home Department

This appeal raises the issue whether, upon marrying her husband, the Appellant acquired the right of permanent residence in the United Kingdom pursuant to the terms of Article 17(3) of Council Directive 2004/38/EC of 29 April 2004 (“the Directive”). The Directive was transposed into national law in the United Kingdom by the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”), which came into force on 30 April 2006. 30 April 2006 was also the date of the expiry of the transposition period provided under the Directive.

The factual background was common ground or virtually common ground.

The Appellant is a Zimbabwean national born on 6 June 1954. She arrived in the United Kingdom on 18 July 2005 using a visitor’s visa valid until 5 January 2006. She remained here illegally thereafter.

In February 2007, the Appellant met Jeronimo Massenet-Nicolau (“Mr Nicolau”), an EEA national from Spain. They began living together in April 2007 and married on 27 June 2008. Mr Nicolau had begun working in the United Kingdom at some time before 1990. He ceased to work in 2002 because of ill health. Although Mr Bilal Rawat, counsel for the respondent Secretary of State (“the Respondent”), did not formally concede the issue, he accepted that, on the evidence before the Asylum and Immigration Tribunal (“the AIT”), he could not realistically in this court challenge the proposition that Mr Nicolau had stopped working as a result of permanent incapacity. Mr Nicolau died on 25 January 2009. Thus, at the time of Mr Nicolau’s death, the Appellant and he had been married for almost 7 months.

On 23 March 2009, the Appellant claimed asylum. The Secretary of State refused the application in a letter dated 18 September 2009. In a determination dated 1 December 2009, the AIT dismissed the Appellant’s appeal against that refusal.

On 14 June 2010, Beatson J (as he then was) ordered a reconsideration of the appeal on the grounds that it was arguable that, on her marriage, the Appellant fell within regulation 15(1)(d) of the 2006 Regulations.

In a determination given on 17 December 2010, the Upper Tribunal reconsidered the decision of the AIT and held that the latter’s failure to consider whether the Appellant came within regulation 15(1)(d) of the 2006 Regulations was not material and would not have altered the outcome of the appeal. The Upper Tribunal appears to have concluded that regulation 15(1)(d) did not apply if the Union citizen was dead at the time the family member applied for, or asserted, a permanent right of residence. The Upper Tribunal refused permission to appeal to the Court of Appeal.

The application for permission made to the Court of Appeal was put on two grounds: first that the Appellant came within Article 12(2) of the Directive; second that she came within Article 17(3) of the Directive.

On 25 May 2011, Lord Justice Etherton refused permission. On 15 March 2012, following an oral application, Lord Justice Stanley Burnton (as he then was) granted permission on the second ground alone, namely that it was arguable that Article 17(3) conferred a right of permanent residence on the Appellant.

It was common ground between the parties:

In particular, Mr Saad Saeed, solicitor advocate for the Appellant, did not seek to argue that regulation 15 of the 2006 Regulations conferred, or purported to confer, greater, or different, rights of permanent residence than those referred to in Article 17 of the Directive.

Article 17 of the Directive states as follows:

“Exemptions for persons no longer working in the host Member State and their family members

1.

By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

(a)

workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years. If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

(b)

workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work. If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

(c)

workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State. Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.

2.

The conditions as to length of residence and employment laid down in point (a) of paragraph 1 and the condition as to length of residence laid down in point (b) of paragraph 1 shall not apply if the worker's or the self-employed person's spouse or partner as referred to in point 2(b) of Article 2 is a national of the host Member State or has lost the nationality of that Member State by marriage to that worker or self-employed person.

3.

Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.

4.

If, however, the worker or self-employed person dies while still working but before acquiring permanent residence status in the host Member State on the basis of paragraph 1, his family members who are residing with him in the host Member State shall acquire the right of permanent residence there, on condition that:

(a)

the worker or self-employed person had, at the time of death, resided continuously on the territory of that Member State for two years; or

(b)

the death resulted from an accident at work or an occupational disease; or

(c)

the surviving spouse lost the nationality of that Member State following marriage to the worker or self-employed person.”

(Emphasis supplied.)

For present purposes the relevant definition of "Family member" as contained in Article 2 (2) is "the spouse".

Regulation 15 states as follows:

“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;

(b)

a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(c)

a worker or self-employed person who has ceased activity;

(d)

the family member of a worker or self-employed person who has ceased activity;

(e)

a person who was the family member of a worker or self-employed person where—

(i)

the worker or self-employed person has died;

(ii)

the family member resided with him immediately before his death; and

(iii)

the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

(f)

a person who—

(i)

has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii)

was, at the end of that period, a family member who has retained the right of residence.

(2)

Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

(3)

But this regulation is subject to regulation 19(3)(b).”

The following summary is in large measure gratefully adopted from Mr Rawat's written skeleton argument. The Directive was transposed into national law on 30 April 2006 when the 2006 Regulations came into force. The Directive consolidates and develops the rights of Union citizens, and their family members, to move freely within the territory of member states of the EU. The exercise of such rights is subject to the limitations and conditions laid down in the Treaty establishing the European Community and to the measures adopted to give it effect (see recitals 1 to 4 of the Preamble to the Directive).

Recital 5 provides:

“The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality.”

Recital 16 states that the beneficiaries of a right of residence should not be expelled as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

Recitals 17 to 19 are in the following terms:

“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.

19 Certain advantages specific to Union citizens who are workers or self-employed persons and to their family members, which may allow these persons to acquire a right of permanent residence before they have resided five years in the host Member State, should be maintained as these constitute acquired rights, conferred by Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State and Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued there and activity in a self-employed capacity."

Article 1(a) provides that the Directive lays down the conditions governing the exercise of the right of free movement and residence (including permanent residence) by Union citizens and their family members. Article 3(1) confirms that the Directive applies to the family members of a Union citizen who “accompany or join” that Union citizen, so giving effect to recital 5 quoted above. Article 2(2)(a) includes the spouse of a Union citizen within the definition of a family member.

The Directive confers three different forms of residence right, the first two of which are found in Chapter III of the Directive:

Article 13(2) makes provision for a non-EEA national family member to retain a right of residence where a marriage to a Union citizen has been annulled or ended in divorce in specified circumstances, one of which is where the marriage had lasted at least three years, including one year in the host Member State. As with Article 12, the family member retains the right of residence “exclusively on a personal basis” andbefore acquiring the right of permanent residence must show that that he is a worker, self-employed or economically self-supporting.

Article 14 of the Directive governs the basis on which a right of residence shall be retained. It states:

“1.

Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.

Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.”

Chapter IV of the Directive contains the third and highest level of residence right - that of permanent residence. Articles 16 to 18 address the eligibility conditions which have to be satisfied for the acquisition of that right. By articles 16(1) and (2):

“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."

Article 16(1) and (2) gives effect to Recitals 17 and 18 of the Preamble, already quoted above. Accordingly, Article 16(3) states that the right to permanent residence cannot be lost through temporary absences for certain specified reasons. Article 16(4) provides that the right of permanent residence, once acquired, can only be lost through absence from the host Member State for a period exceeding two consecutive years. It was common ground that, prior to the coming into force of the Directive, the acquisition of a right of permanent residence on the ground of legal residence for a continuous period of five years in the host Member State as provided for in Article 16(1), did not appear in the EU law instruments adopted for the application of Article 18 of the European treaty; see The Secretary of State for Work and Pensions v Lassal [2011] 1 CMLR 31; [2010] CJEU (Case C-162-09) at [33].

Article 17, which I have already quoted above, provides for an alternative route for the acquisition of the right to permanent residence. Article 17 implements recital 19 of the Preamble.

Article 18 addresses the acquisition of the right of permanent residence by non-EEA national family members in the following terms:

“Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.”

Pursuant to Article 28 (2), the expulsion of a person with a permanent right of residence can only be made on serious grounds of public policy or public security.

Commission Regulation (EEC) No 1251/70 of 29 June 1970 (“Regulation 1251/70”), referred to in recital 19 of the Directive quoted above, provided, in so far as is material, as follows:

“Article 1

The provisions of this Regulation shall apply to nationals of a Member State who have worked as employed persons in the territory of another Member State and to members of their families, as defined in Article 10 of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community.

Article 2

1.

The following shall have the right to remain permanently in the territory of a Member State

…….

(b)

a worker who having resided continuously in the territory of that State for more than two years, ceases to work there as an employed person as a result of permanent incapacity to work. If such incapacity is the result of an accident at work or an occupational disease entitling him to a pension for which an institution of that State is entirely or partially responsible, no condition shall be imposed as to length of residence.

Article 3

The members of a worker’s family referred to in Article 1 of this Regulation who are residing with him in the territory of a Member State shall be entitled to remain there permanently if the worker has acquired the right to remain in the territory of that State in accordance with Article 2, and to do so even after his death."

Regulation 1251/70 was repealed with effect from 30 April 2006 by Regulation 635/2006; see [2006] OJ L112/9. That repeal occurred in the context of the expiry of the transposition period for the Directive on 30 April 2006, which resulted in the replacement of Article 2(1)(b) of Regulation 1251/70 by Article 17(1)(b); see paragraph 64 of the Opinion of the Advocate General in Lassal supra.

Article 10 of Council Regulation (EEC) No 1612/68 ("Regulation 1612/68"), insofar as material, states:

“1.

The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a)

his spouse …"

In summary, Mr Saeed submitted as follows:

In summary, Mr Rawat submitted as follows:

The first issue which arises is what was the relevant status of Mr Nicolau as at the date of his marriage to the Appellant in 2008? Was he to be regarded as a person falling within Article 16(1) on the grounds that, by that date, he had resided permanently in the United Kingdom for five years; alternatively, was he to be regarded as a person falling within Article 17(3), namely, as expressed in the language of that Article, as someone who "has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1"; or, in the further alternative, as a person falling within both Article 16(1) and Article 17(1)?

In this context I reject Mr Saeed's first submission that either the Upper Tribunal or this court was in some way bound by any so-called finding of the AIT at paragraph 14 of its judgment. The correct status of Mr Nicolau is a question of law, based on what, in substance, were the undisputed facts. That question of law is a matter for this court to decide.

In the period from the date of his retirement from work in 2002 to 30 April 2006 (the date upon which the Directive was transposed into national law), Mr Nicolau had enjoyed the right of permanent residence conferred by Article 2(1) (b) of Regulation 1251/70, on the grounds that in 2002 he had ceased to work as a result of permanent incapacity and that, by 2002, he had resided continuously in the United Kingdom for more than two years. During that period, and prior to the implementation of the Directive, there was no right to permanent residence based on four or five years residence, although, as an EU national who had resided in the United Kingdom for four years or more, he was entitled to apply for indefinite leave to remain under the Immigration Rules - see Kaba v Secretary of State for the Home Department (No.1) [2003] 1 C.M.L.R. 39; [2000] CJEC (Case C-356/98)).

On 30 April 2006 Regulation 1251/70 was repealed with effect from that date. However it is clear from paragraphs AG63-AG70 of the Opinion of the Advocate General in Lassalthat a worker, who had acquired a permanent right of residence under Article 2(1)(b) of Regulation 1251/70 before it was repealed, but whose two-year periods of continuous residence had ended before 30 April 2006, was nonetheless entitled to be treated as someone who fell within Article 17(1)(b) and therefore who enjoyed the permanent right of residence afforded by that provision. The Advocate General said:

“The necessity of taking into consideration periods of residence which ended before April 30, 2006 in the context of article 17(1)(b) of Directive 2004/38

AG63 Under art.17(1)(b) of the directive, the acquisition of a right of permanent residence is subject as in the case of art.16(1) to the condition that there has been a period of continuous residence in the host Member State for a certain length of time, with art.17(1)(b) of the directive requiring a period of residence of only two years. The question therefore also arises with regard to that provision whether a period of residence which ended before April 30, 2006 must be taken into account. With regard to art.17(1)(b) of the directive, that question can only be answered to the effect that a period of residence which was completed before April 30, 2006 must also be taken into account.

AG64 In that context, the connection between art.17(1)(b) of Directive 2004/38 and its predecessor provision, art.2(1)(b) of Regulation 1251/70 , must be considered. Article 2(1)(b) of Regulation 1251/70 provided in almost exactly the same terms for a right to remain in the host Member State for a worker who had become incapable of working. Regulation 1251/70 was repealed with effect from April 30, 2006. ²⁷ The repeal occurred in the context of the expiry of the transposition period for Directive 2004/38 on April 30, 2006 which resulted in the replacement of art.2(1)(b) of Regulation 1251/70 by art.17(1)(b) of Directive 2004/38 , which is now the basis for the right of residence of a worker who has become incapable of working. *991²⁸

AG65 Were two-year periods of continuous residence in the host Member State which took place before a permanent incapacity to work arose, and which ended before April 30, 2006, not to be taken into account in connection with art.17(1)(b) of Directive 2004/38 , it could not then be excluded that a worker who had acquired such a right under Regulation 1251/70 on the basis of a period of residence which ended before April 30, 2006 would no longer enjoy a corresponding right of residence. Under Regulation 1251/70 , the Member States were namely obliged to issue residence permits of only limited duration. ²⁹ On the expiry of the term of a residence permit issued under art.2(1)(b) of the Regulation, a worker whose two-year period of residence ended before April 30, 2006 can today no longer apply for an extension under Regulation 1251/70 , since it was repealed with effect from April 30, 2006. A worker who has become incapable of working would also be unable to rely on art.17(1)(b) of the directive, because his two-year period of residence ended before April 30, 2006. That provision would therefore also not give him a right of permanent residence. Such a worker would therefore, on expiry of the term of his residence permit, no longer enjoy any right of residence corresponding to art.2(1)(b) of Regulation 1251/70 or art.17(1)(b) of Directive 2004/38 .

AG66 That result would clearly be contrary to the intention of the Community legislature, which adopted Directive 2004/38 in order to consolidate and strengthen workers’ rights of residence. ³⁰ It cannot be assumed that by adopting Directive 2004/38 the Community legislature wished to achieve the abovementioned result. That would run counter to art.38 of Directive 2004/38 and to the aim of remedying the sector-by-sector, piecemeal approach to the right of free movement and residence expressed by the fourth recital in the preamble. The directive aims to strengthen and codify in a single legislative act rights of residence laid down before in numerous acts of secondary legislation. ³¹

AG67 In the context of art.17(1)(b) of Directive 2004/38 , the concept of a continuous period of residence of two years must therefore be interpreted as meaning that a period of residence which ended before April 30, 2006 must also be taken into account.

Applicability to article 16(1) of the directive

AG68 In the scheme of Directive 2004/38, arts 16(1) and 17(1)(a) are closely connected. They are both in the chapter which provides for a right of permanent residence, in the section in which the substantive conditions for the acquisition of that right are set out. Furthermore, the introductory wording of art.17 of the directive:

“By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by ...” *992

makes clear that there is also a close substantive connection between arts 16 and 17 of the directive.

AG69 Against that background of a close connection between those two provisions it must in principle be assumed that the two factual elements whose wording is almost identical—“a continuous period of five years of residence in the host Member State” in art.16(1) of the directive and “resided continuously in the host Member State for more than two years” in art.17(1)(b) of the directive—are to be interpreted in the same way. Therefore, a period of residence which ended before April 30, 2006 would also have to be taken into account in the context of art.16(1) of the directive.

AG70 The Government of the United Kingdom contests that point of view by arguing that the right of permanent residence under art.16 of the directive is a right which was not previously provided for in secondary legislation. That objection is unconvincing. The Community legislature could easily have decided to make a distinction between art.17(1)(b) and art.16(1) of the directive concerning the application of the conditions of those provisions to past periods of residence. It chose not to. The use of virtually identical conditions in both provisions is a strong indication that the Community legislature was following the same approach to that issue in both provisions.

In coming to its conclusion, that continuous periods of five years residence completed before the date of transposition of the Directive could be taken into account for the purposes of Article 16 of the Directive, the Court of Justice in effect adopted the above reasoning of the Advocate General; see in particular paragraphs 34 to 40:

“34 However, such a finding cannot lead to the conclusion that only continuous periods of five years’ legal residence either ending on April 30, 2006 or thereafter, or commencing after April 30, 2006 are to be taken into account for the purposes of acquisition of the right of permanent residence provided for in art.16 of Directive 2004/38 .

35 In the first place, an interpretation to the effect that only continuous periods of five years’ legal residence commencing after April 30, 2006 should be taken into account for the purposes of the acquisition of a right of permanent residence would mean that such a right could be granted only from April 30, 2011. Such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with EU law instruments pre-dating April 30, 2006 of any effect for the purposes of the acquisition of that right of permanent residence. It should be stated in that connection that prior to the adoption of Directive 2004/38 EU law already provided in certain specific cases for a right of permanent residence, which was included in art.17 thereof.

36 It must be stated that such a result is contrary to the purpose of Directive 2004/38 , set out in [30]–[32] of this judgment, and would deprive it of its effectiveness.

37 In the second place, an interpretation to the effect that only continuous periods of five years’ legal residence ending on April 30, 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in art.16 of Directive 2004/38 is also contrary to the purpose and effectiveness of that directive. The EU legislature made the acquisition of the right of permanent residence pursuant to art.16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. As the A.G. pointed out, in point AG80 of her Opinion, it would be incompatible with the *1006 integration-based reasoning behind art.16 of that directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after April 30, 2006.

38 Furthermore, it should be noted that, insofar as the right of permanent residence provided for in art.16 of Directive 2004/38 may only be acquired from April 30, 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to art.16 of Directive 2004/38 , but simply gives present effect to situations which arose before the date of transposition of that directive.

39 It should be borne in mind in that regard that the provisions on citizenship of the Union are applicable as soon as they enter into force and therefore they must be applied to the present effects of situations arising previously (see D’Hoop v Office National de l’Emploi (C-224/98) [2002] E.C.R. I-6191; [2002] 3 C.M.L.R. 12 at [25] and the case law cited).

40 Consequently, for the purposes of the acquisition of the right of permanent residence provided for in art.16 of Directive 2004/38, continuous periods of five years’ residence completed before the date of transposition of that directive, namely April 30, 2006, in accordance with the earlier EU law instruments, must be taken into account.” [Emphasis supplied.]

So, for example, a worker who had, as at 30 April 2006, continuously resided within the United Kingdom for 4 years 11 months and whose two-year period of continuous residence prior to retirement through incapacity, had ended on 31 May 2003, almost 3 years before the coming into effect of the Directive, would nonetheless be entitled, based on his two years residence prior to retirement, to avail himself of the rights afforded by Article 17, notwithstanding that his rights had originally been acquired under Regulation 1251/70. It must follow that, likewise, his family members, who were residing with the worker as at 30 April 2006 (subject to Mr Rawat’s further argument that a family member has also to be residing with the worker at the precise date of retirement through incapacity, which I deal with below), were entitled to continue to enjoy, pursuant to Article 17(3), the rights of permanent residence which they had originally acquired under Article 3(1)(b) of Regulation 1251/70, on the grounds that the worker, whose family members they were, fell within the description of someone who "has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1" contained in Article 17(3). Such a conclusion is necessarily consistent with the Court's approach that the taking into account of all periods of residence completed before 30 April 2006 "simply gives present effect to situations which arose before the date of transposition of [the Directive]".

In the example which I have given, the position clearly could not change, simply because a month later, on 31 May 2006, the worker arguably acquired a further right of permanent residence pursuant to Article 16, when he had completed a continuous period of five years residence. It would be wholly inconsistent with the reasoning of the Court of Justice if, on that date, his family members who had previously obtained the right of permanent residence either originally pursuant to Regulation 1251/70, as continued in effect by Article 17(3), or simply pursuant to Article 17(3), suddenly became subject to the far more onerous residence requirements contained in Article 16(2). Indeed, Article 16 (4) provides that:

“ Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period in succeeding two consecutive years”.

The administrative provisions in Section II of the Directive appeared to suggest that this article equally applies to rights acquired under Article 17.

Similarly, in my judgment, it would be inconsistent with the reasoning of the Court of Justice and the analysis of the Advocate General in the passages quoted above, if on 30 April 2006, Mr Nicolau's previously acquired rights of permanent residence pursuant to Regulation 1251/70 suddenly had to be disregarded, simply because, by that date, he had completed five years of continuous residence. The correct analysis is:

One cannot derive from the recitals to the Directive, or the structure of its operative parts, any logical rationale for treating Mr Nicolau differently from the worker in the example which I have articulated above. On the contrary, any insistence that Mr Nicolau should be regarded as exclusively falling within Article 16 as at 30 April 2006, would simply fail to implement the function and purpose of Article 17, as described in the passages which I have quoted above from Lassal demonstrate, namely to ".. give.. present effect to situations which arose before the date of transposition of [the Directive]". That approach is also clearly supported by recital 19 of the Directive and page 16 of the Commission's Memorandum which clearly envisaged that Article 17 would "maintain the existing acquis on the right to remain" and would "take.. over the current legislation on the right to remain" as contained in Regulation 1251/70.

Construed in their proper context, and against the background which I have described above, there is thus no need to read the words "shall be enjoyed before completion of a continuous period of five years of residence" in Article 17(1), as depriving Mr Nicolau of the ability, during his lifetime, to rely on the circumstances in which he originally acquired his right of permanent residence under Regulation 1251/70 or to subject him, or his relevant family members, to the onerous conditions of Article 16 (2). They cannot, in my judgment, be construed as only allowing a worker who, as at 30 April 2006, had not yet completed five years continuous residence, to rely upon the rights afforded to workers who cease work as a result of permanent incapacity. Any other construction would fail to give effect to the clear intention of the Directive that present effect should be given to rights which arose before the date of the Directive's transposition.

The fact that the rights conferred by Article 17 are in derogation of the social integration objective of the Directive (because they allow the conferring of permanent rights of residence without the necessary period for social integration to take place), and that, accordingly, Article 17 is required to be strictly interpreted (see paragraph [23] of the judgment in Commission of the European Communities v Italy (C40/93) [1995] ECR I-1319), does not lead to any different conclusion. That is because the recitals to the Directive, and indeed the Memorandum, make it clear that previously acquired rights are to be preserved.

Accordingly I conclude that, as at the date of his marriage to the Appellant in 2008, Mr Nicolau fell to be regarded as a person falling within Article 17(1). It is irrelevant for present purposes whether, as at 30 April 2006, he also had acquired a right of permanent residence under Article 16, as it was common ground that a Union citizen was entitled to rely on whichever Community right was more favourable to him.

As I have summarised above, the Respondent's submission was that, even if Mr Nicolau fell within the description of someone who "has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1", the Appellant was not entitled to a right of permanent residence under Article 17(3), because she had not been a family member of Mr Nicolau in 2002, when he had acquired the right of permanent residence under Article 2(1)(b) of Regulation 1251/70, when he retired from work as a result of permanent incapacity.

First, I do not consider that the words in Article 17(3) "the family members of a worker … who are residing with him" predicates that, in order to qualify, the family members have to have been residing with him either before he ceased work, and he therefore was still a "worker", or on the precise date when he acquired his right of permanent residence. The use of the word "worker" in the subordinate clause of the same paragraph "if the worker … has acquired himself the right of permanent residence" clearly shows that the word "worker" in the paragraph is not restricted to someone prior to the date of his ceasing work, since ex hypothesi the right is only acquired when the worker has ceased working.

Nor do I accept Mr Rawat's submissions that the provisions of Regulations 1251/70 and 1612/68 demonstrate that article 3 of Regulation 1251/70 (and by extension article 17(3)) was intended to benefit only those family members who were already family members at the time the EEA national acquired permanent residence when he ceased work as a result of permanent incapacity. Contrary to his submissions, there is nothing in the use of the present tense in Article 3 of Regulation 1251/70 in the phrase “a worker’s family … who are residing with him” from which it can be implied that the family member had to be residing with the worker on the precise day when the latter acquired the right of permanent residence, through ceasing work on the grounds of permanent incapacity. Nor can any support for his argument be derived from the definition of family members in Article 10 of Regulation 1612/68 and the use of the words "the right to install themselves with a worker".

On the contrary, there is nothing in the wording of Article 3 of Regulation 1251/70, or Article 17(3), which suggests any temporal precondition as to the date upon which a person becomes a family member of the worker. The only condition is that the family member has to be residing with the worker who "has acquired himself the right of permanent residence … on the basis of paragraph 1".

Any such construction as that propounded by Mr Rawat, would, in my judgment, be contrary not only to the history of the right of permanent residence and the predecessors of Article 17, but also to the approach taken by the Court of Justice in Metock and others v Minister for Justice, Equality and Law Reform [2009] QB 318, at paragraphs 81 to 99, that family members of Union citizens can derive rights from the Directive irrespective of when they became family members. That case was dealing simply with rights of residence, as opposed to permanent rights of residence, but the reasoning is equally applicable to the present case. As pointed out by the Court, none of the relevant provisions stated that the rights only applied to those who were family members at the time when the EEA national acquired the right of permanent residence; nor could such a condition be read into the relevant provisions, as such an interpretation would be contrary to the objectives of the Directive. Paragraphs 81 - 99 state as follows:

Nor am I persuaded by Mr Rawat’s submission that the result of such an unfettered right would be inappropriately to confer status on a family member who claimed the benefit of article 17(3), which would not be available to the family member who relied on article 16(2), with the result, for example, that a spouse would not need to integrate into the host Member State through a period of residence and would immediately gain enhanced protection against expulsion. As is apparent, Article 17 is not seeking to implement the integration objective of the Directive; on the contrary, it is providing an exceptional right in circumstances where, through loss of ability to work as a result of permanent incapacity, the Union member may well be unable to fulfil the necessary five years residence requirement, and thereby integrate, because he no longer qualifies under Article 7(1)(a) as a worker or self-employed person. It follows that his family members may well not have been able to do so either.

Whilst the conclusion which I have reached is consistent with the finding in Secretary of State for the Home Department v Mah, supra, it is not necessary to analyse the decision reached in that case since, as Mr Rawat pointed out, the Upper Tribunal did not address the specific issues which have been argued in this case.

The conclusion that, for the purposes of Article 17(3), a family member does not have to be such prior to, or as at the date of, the Union member's own acquisition of permanent residence, gives rise to the potential for abuse, such as deathbed marriages, as Mr Rawat submitted. However Article 35 of the Directive makes it clear that Member States

Accordingly I conclude that, as at the date of her marriage in June 2008 the Appellant acquired a permanent right of residence in the United Kingdom pursuant to Article 17(3) of the Directive, on the grounds that Mr Nicolau had "acquired himself the right of permanent residence…. on the basis of paragraph 1" of article 17. Her right was not subject to the residence requirements of either Article 12(2) or Article 16(2).

I would allow this appeal.

I agree.

I have found it a little puzzling that, whereas under Article 16 a family member of a Union citizen (who has resided legally for a continuous period of 5 years in a host Member State) does not acquire a right of permanent residence unless he or she has resided with the Union citizen for a continuous period of 5 years, under Article 17 the family member of a Union citizen (who has resided continuously in the host Member State for more than two years and has stopped working as a result of permanent capacity to work) can acquire a right of permanent residence immediately he or she becomes a family member by marrying that Union citizen. But that does seem to be what Article 17 says.

If, therefore, the Union citizen has acquired a right of permanent residence by virtue of 2 years work and a subsequent permanent incapacity to work as Mr Nicolau undoubtedly did under Regulation No 1251/70 and that right, as my Lady explains, continued to exist when that Regulation was repealed and Directive 2004/38/EC came into force, it must follow that the Appellant on her marriage also became entitled to a right of permanent residence.

I agree that this appeal must be allowed.