CELEX: 62000CJ0257
Freedom of movement for workers
Regulation (EEC) No 1251/70
Right of workers to remain in the territory of a Member State after having been employed in that State
Right of residence of members of the family of a deceased worker
Requirement of the worker's continuous residence for at least two years

By order of 28 April 2000, received at the Court on 26 June 2000, the Immigration Appeal Tribunal referred to the Court for
a preliminary ruling under Article 234 EC five questions on the interpretation of Article 3(2) of 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 (OJ, English Special Edition 1970 (II), p. 402).
Those questions were raised in the course of proceedings brought by Mrs Givane and others, who are Indian nationals and members
of the family of a deceased worker, himself a Portuguese national, against the Secretary of State for the Home Department
(hereinafter
the Secretary of State) concerning the latter's refusal to grant them indefinite leave to remain in the United Kingdom.
Legal framework
Community legislation
Under Article 48(1) of the EC Treaty (now, after amendment, Article 39(1) EC), freedom of movement for workers is to be secured
within the Community.  Article 48(3)(d) states that it is to entail the right to remain in the territory of a Member State
after having been employed in that State, subject to conditions to be embodied in implementing regulations to be drawn up
by the Commission.
Articles 1 to 5 of Regulation No 1251/70 read as follows: Article 1The 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:
(a)
a worker who, at the time of termination of his activity, has reached the age laid down by the law of that Member State for
entitlement to an old-age pension and who has been employed in that State for at least the last twelve months and has resided
there continuously for more than three years;
(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;
(c)
a worker who, after three years' continuous employment and residence in the territory of that State, works as an employed
person in the territory of another Member State, while retaining his residence in the territory of the first State, to which
he returns, as a rule, each day or at least once a week.
Periods of employment completed in this way in the territory of the other Member State shall, for the purposes of entitlement
to the rights referred to in subparagraphs (a) and (b), be considered as having been completed in the territory of the State
of residence.
2.
The conditions as to length of residence and employment laid down in paragraph 1(a) and the condition as to length of residence
laid down in paragraph 1(b) shall not apply if the worker's spouse is a national of the Member State concerned or has lost
the nationality of that State by marriage to that worker.
Article 3
1.
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.
2.
If, however, the worker dies during his working life and before having acquired the right to remain in the territory of the
State concerned, members of his family shall be entitled to remain there permanently on condition that:
─
the worker, on the date of his decease, had resided continuously in the territory of that Member State for at least two years;
or
─
his death resulted from an accident at work or an occupational disease; or
─
the surviving spouse is a national of the State of residence or lost the nationality of that State by marriage to that worker.
Article 4
1.
Continuity of residence as provided for in Articles 2(1) and 3(2) ... shall not be affected by temporary absences not exceeding
a total of three months per year ...
...Article 5
1.
The person entitled to the right to remain shall be allowed to exercise it within two years from the time of becoming entitled
to such right pursuant to Article 2(1)(a) and (b) and Article 3.  During such period he may leave the territory of the Member
State without adversely affecting such right.
2.
No formality shall be required on the part of the person concerned in respect of the exercise of the right to remain.
With regard to the definition of
members of [the] family, Article 1 of Regulation No 1251/70 refers to Article 10 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom
of movement for workers within the Community (OJ, English Special Edition Chapter 1968 (II), p. 475).  Paragraph 1 of the
latter provision provides that the following, irrespective of their nationality, are to 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 and their descendants who are under the age of 21 years or are dependants;
(b)
dependent relatives in the ascending line of the worker and his spouse.
United Kingdom legislation
The relevant provisions of national law are the Immigration Act 1971 and the Immigration Act 1988, the Immigration (European
Economic Area) Order 1994 and the United Kingdom Immigration Rules adopted by the United Kingdom Parliament in 1994 (House
of Commons Paper 395) (hereinafter
the Immigration Rules), in their version in force at the material date in the main proceedings, which govern entry to, and residence in the United
Kingdom.
Under the Immigration Act 1971 and the Immigration Rules a person who is not a British citizen may, as a general rule, enter
or stay in the United Kingdom only if he has obtained leave to do so.
Section 7(1) of the Immigration Act 1988, which creates an express exception from the general regime requiring the grant of
leave, in favour of persons exercising enforceable Community rights, reads as follows:   A person shall not under the [Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in
which he is entitled to do so by virtue of an enforceable Community right or of any other provision made under Section 2(2)
of the European Communities Act 1972.
Rule 257(v) of the Immigration Rules provides that the members of the family of a national of the European Economic Area (as
defined in the Immigration (European Economic Area) Order 1994) who dies during his working life after having resided continuously
in the United Kingdom for at least 2 years, or whose death results from an accident at work or an occupational disease, are
to be permitted to remain in the United Kingdom indefinitely.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Mr Givane, a Portuguese national, entered the United Kingdom on 15 April 1992 to work there as a chef.  He obtained a five-year
residence permit.  He was continuously resident in the United Kingdom until 10 April 1995, the date on which he went to India
to stay for 10 months.
On 16 February 1996, Mr Givane returned to the United Kingdom accompanied by his spouse, Mrs Givane, and their three children,
Vashuben, Vinodbhai and Subashkumar, all four being of Indian nationality and the appellants in the main proceedings (hereinafter
the appellants).  Mr Givane was in possession of an EU residence permit valid until 21 July 2002, whereas the others had obtained an entry
clearance granted to family members of nationals of the European Economic Area (
EEA Family Permit).
On 11 November 1997, Mr Givane died as a result of kidney failure and chronic liver disease, which were not regarded as occupational
diseases in this particular case.  The Secretary of State was informed of that death in June 1998.
The appellants applied for indefinite leave to remain in the United Kingdom under Article 3(2) of Regulation No 1251/70, relying
on the right of residence of family members of a deceased worker.  On 21 August 1998, the Secretary of State refused their
application on the ground that, at the date of his death, Mr Givane did not satisfy the test, laid down by that provision,
of continuous residence in the host Member State for at least two years.  According to the Secretary of State, that period
of residence must immediately precede the  worker's death.
The appellants appealed against that decision to the Immigration Adjudicator.  That appeal was rejected by decision of 26
June 1999, on the ground that Article 3(2) of Regulation No 1251/70 required, in Mr Givane's case, residence in the United
Kingdom for a continuous period of two years immediately preceding his death.
The appellants appealed against that decision to the Immigration Appeal Tribunal.  They claim that Article 3(2) of Regulation
No 1251/70 requires only that Mr Givane resided continuously in the United Kingdom for two years at any time prior to his
death.  He satisfied that requirement between April 1992 and April 1995.
Since it considered that the dispute before it required the interpretation of Article 3(2) of Regulation No 1251/70, the Immigration
Appeal Tribunal decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
1.
Whether Article 3(2) of Regulation (EEC) No 1251/70 requires that two-year period of continuous residence to be established
in the period immediately prior to a worker's death, or whether it may be established by a period of continuous residence
which occurs at an earlier point in the worker's life?
2.
If the said two-year period is not required to be established immediately prior to the worker's death, then, once such a two-year
period of residence has been established by the worker, can the benefit of the accrued rights deriving from that period be
retained after periods of absence from the host EU State in excess of the three months specified in Article 4(1) (which have
the effect of breaking the period of continuous residence in the host State in question)?
3.
If the answer to question 2 is in the affirmative, whether the consequential right to retain the benefit of past periods of
continuous residence, despite subsequent breaks in residence, is subject to any limitations?
4.
If the answer to question 3 is in the affirmative, what those limitations are; and what factors must be considered by the
national court in seeking to establish whether breaks in the continuity of residence have broken the entitlement to rely on
past periods of residence?
5.
Whether the benefit of Article 3(2) may be claimed by the deceased worker's family members, in circumstances in which the
worker's 10-month period of absence represents less than a third of the period of continuous residence prior to the absence,
and less than a fifth of the total time spent by the worker in the host State prior to his death?
The first question
By its first question, the referring court is asking, in essence, whether the first indent of Article 3(2) of Regulation No
1251/70 is to be interpreted as meaning that the period of two years' residence required by that provision must immediately
precede the worker's date of death or whether it is sufficient that he has completed such a period of residence at some time
in the more remote past.
Observations submitted to the Court
The appellants did not take part in the proceedings before the Court.  Their arguments are taken from the order for reference.
It is apparent therefrom that they submit that their application for indefinite leave to remain in the United Kingdom should
be granted given that Mr Givane resided continuously in the United Kingdom between April 1992 and April 1995, that is for
a period exceeding two years.  The words
on condition that the worker, on the date of his decease, had resided continuously, in the first indent of Article 3(2) of Regulation No 1251/70, do not impose any additional requirement as to when such continuous
residence is to take place.
The appellants submit that such interpretation is in accordance with the objectives both of Article 48 of the EC Treaty and
of Regulation No 1251/70.  They submit that, had Mr Givane considered, when he finally left India, that he might die of natural
causes within the next two years and that an interpretation of the type adopted by the Secretary of State would be applied,
he would have been discouraged from exercising his right to freedom of movement because of the unfavourable consequences for
the welfare of his family members.
The appellants admit, none the less, that, where the two years of continuous residence predate an absence of the worker of
more than three months from the host State, such an absence should be subject to some form of reasonable and proportional
limitation.
The United Kingdom and German Governments, and the Commission, submit that the first indent of Article 3(2) of Regulation
No 1251/70 is to be interpreted as meaning that a period of two years' continuous residence must immediately precede the worker's
death.
Those Governments rely on the wording of the first indent of Article 3(2) of Regulation No 1251/70 and particularly on the
words
on the date of his decease and
resided continuously.  The continuous residence commences at the moment when the worker enters the Member State concerned and ends, in accordance
with Article 4 of that regulation, if that worker is absent for more than three months.  The United Kingdom Government maintains
that such interpretation is strengthened by the French (
depuis au moins 2 années) and German (
seit mindestens 2 Jahren) versions of that provision.  Moreover, the German Government points out that the word
continuous is used in other places in Regulation No 1251/70, for example in Article 2(1)(a) and (b), provisions which refer to minimum
periods of residence immediately prior to the operative event.
Those Governments also rely upon the objectives of Regulation No 1251/70.  That regulation is intended to ensure that the
right to reside in the host Member State, provided for by Article 48(3)(d) of the EC Treaty, may be exercised only if the
persons concerned have established a significant link with that State and if there has been a certain
putting down of roots in it.  According to those Governments, the necessity for a certain stability of residence is shown, in this case, by the
requirement, at the date of the worker's death, of a continuous period of residence for at least two years in the Member State
concerned.
The German and United Kingdom Governments submit, further, that the appellants' interpretation introduces uncertain and additional
tests that do not flow from Regulation No 1251/70.
The Commission argues that it is entirely possible to interpret Article 3(2) of Regulation No 1251/70 in either way without
distorting the meaning of the words of that provision.  It maintains that, according to the English, Spanish, Portuguese and
Swedish versions, the fact that the worker had been continuously resident in the host Member State for a period of two years
at some point in relation to the date of his death could certainly be considered sufficient to justify a right to remain,
whereas the German, French and Italian versions of that provision require that the period of residence continues up to the
time of his death.  According to the Commission, only the interpretation reflected by the latter group of language versions
examined is compatible with all language versions of Regulation No 1251/70.  It should, therefore, prevail in order to ensure
a uniform interpretation of the provision in question.
The Commission states that such interpretation is also supported by the express linking of the two-year period to the worker's
situation
on the date of his decease.  If the two-year period could have been completed at any point in the past, the link to that particular date would have
been superfluous, since it is self-evident that a deceased worker's period of residence cannot continue beyond his death.
Furthermore, the Commission argues that, even if the two-year period of residence did not have immediately to precede the
worker's death, Article 3(2) of Regulation No 1251/70 does not assist the appellants.  It observes, in that regard, that Article
3(1) expressly refers to the members of a worker's family
who are residing with him in the territory of a Member State.  The intention of the Community legislature was to ensure that the family members had established a sufficient link to the
host Member State in their own right before obtaining a permanent right to reside there.
Reply of the Court
At the outset, it is appropriate to recall that, in the context of the freedom of movement for workers, Article 48(3)(d) of
the EC Treaty grants nationals of Member States the right to remain in the territory of a Member State after having been employed
in that State, subject to conditions which are to be embodied in implementing regulations to be drawn up by the Commission.
The conditions of entitlement to the worker's right to remain in the host Member State are set out in Article 2 of Regulation
No 1251/70.  The fundamental condition for the acquisition of that right is, in the usual situation provided for by Article
2(1)(a), a degree of established connection with the host State, which is evidenced by a three-year period of continuous residence
and a period of employment during the last 12 months preceding the end of a worker's working life due to his reaching the
age laid down by the law of that Member State for entitlement to an old-age pension.
The right to reside in that State granted to a worker's family members arises from the rights conferred on him by Article
48 of the EC Treaty.  Article 3(1) of Regulation No 1251/70 states that the members of a worker's family who are residing
with him in the territory of a Member State are 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 of that regulation.
The worker's death transforms his family members' right of residence into a right of their own.  Article 3(2) of Regulation
No 1251/70 provides that, if the worker dies during his working life and before having acquired the right to remain in the
territory of the host Member State under Article 2 of that regulation, members of his family are to be entitled to remain
there permanently on condition that the worker, on the date of his decease, had resided continuously in the territory of that
Member State for at least two years.
In the main proceedings, Regulation No 1251/70 applies since Mr Givane resided in the United Kingdom as a worker within the
meaning both of Article 48 of the EC Treaty and of Regulation No 1251/70.
It is not disputed before the Court that the appellants are members of Mr Givane's family within the meaning of Article 1
of Regulation No 1251/70, read in conjunction with Article 10 of Regulation No 1612/68.
In order to reply to the first question, it is necessary, first of all, to examine the wording of the first indent of Article
3(2) of Regulation No 1251/70 and, more particularly, the words
for at least two years.  The parties to the main proceedings reach opposing conclusions with regard to the literal interpretation of that provision.
In that regard, it must be noted that, while the wording of the first indent of Article 3(2) of Regulation No 1251/70, in
the French (
depuis au moins 2 années), German (
seit mindestens 2 Jahren) and Italian (
da almeno due anni) versions, that is most of the language versions in existence at the date of its adoption, implies that the two-year period
of continuous residence must continue until the death of the worker, the wording of the other language versions of that provision
is more vague.  The Spanish (
un minimo de dos años), Danish (
i mindst 2 aar), Greek (
επί δύο τουλάχιστον έτη), English (
for at least two years), Dutch (
gedurende ten minste 2 jaren), Portuguese (
pelo menos 2 anos), Finnish (
vähintään kaksi vuotta) and Swedish (
under minst två år) versions seem more neutral with regard to the chronological connection between the two years' continuous residence and the
date of the worker's death.
As the Court held in Case C-296/95
EMU Tabac and Others
[1998] ECR I-1605, paragraph 36, all the language versions must, in principle, be recognised as having the same weight and
this cannot vary according to the size of the population of the Member States using the language in question.
According to settled case-law, the various language versions of a provision of Community law must be uniformly interpreted,
and thus, in the case of divergence between those versions, the provision in question must be interpreted by reference to
the purpose and general scheme of the rules of which it forms part (see Case 30/77
Bouchereau
[1977] ECR 1999, paragraph 14; Case C-449/93
Rockfon
[1995] ECR I-4291, paragraph 28; and Case C-236/97
Skatteministeriet
v
Codan
[1998] ECR I-8679, paragraph 28; and Case C-420/98
W.N.
[2000] ECR I-2847, paragraph 21).
Since a literal interpretation of the words
for at least two years in the first indent of Article 3(2) of Regulation No 1251/70 does not provide an unequivocal answer to the question referred,
it is necessary to place that expression in its context and to interpret it in relation to the spirit and purpose of the provision
in question.
The interpretation according to which the period of two years must immediately precede the worker's death is supported by
the general scheme of Article 3 of Regulation No 1251/70, read in conjunction with Article 4(1) thereof.
In the first place, the period of two years is expressly linked to the words
on the date of his decease.  If it could terminate at any date when the worker was in the host Member State, it would have been superfluous to establish
such a link with that date.
Secondly, the period of two years must be
continuous.  Under Article 4(1) of Regulation No 1251/70, the continuity of residence required by the first indent of Article 3(2) thereof
is not affected by temporary absences not exceeding a total of three months per year.  Conversely, it follows that longer
absences terminate the period of continuous residence.
Thirdly, in Article 2(1)(a) and (b) of Regulation No 1251/70, the word
continuous refers also to a minimum period of residence taking place immediately before the event which gives rise to the worker's right
to remain in the territory of the host Member State.
The period of two years prescribed by Article 5(1) of Regulation No 1251/70 is not relevant in this case.  That provision
merely lays down the period within which the person concerned must exercise his right of permanent residence in the host Member
State by reference to the date on which that right arose.  It is, in fact, a limitation period.  Moreover, at least with regard
to the period preceding Mr Givane's death, the right of permanent residence in the United Kingdom did not arise either for
Mr Givane or for the appellants.
The interpretation by which the period of two years must have immediately preceded the worker's death is also compatible with
the objectives of Article 48 of the EC Treaty and of Regulation No 1251/70.
Those provisions are intended to ensure freedom of movement for workers by enabling their family members to join them.  As
the Court has noted in its case-law, the importance of ensuring the protection of the family life of nationals of the Member
States and the right of residence of the members of their family has been recognised by the Community legislature (see, to
that effect, particularly, Case C-60/00
Carpenter
[2002] ECR I-6279, paragraph 38).  It is in the interest of the worker and his family that, should that worker die prematurely,
his family members should, as a rule, be entitled to reside in the territory of the host Member State.
The exercise of the right of residence is, none the less, subject to the limitations and conditions laid down by the EC Treaty
and by the measures adopted for its application.  In relation to continuation of the right of residence of the family members
of a worker who has died during his working life, the first indent of Article 3(2) of Regulation No 1251/70 envisages that
the worker must, on the date of his decease, have resided continuously in the territory of the host Member State for at least
two years.  That condition is intended to establish a significant connection between, on the one hand, that Member State,
and on the other hand, that worker and his family, and to ensure a certain level of their integration in the society of that
State.
The existence of a significant connection between the host Member State and the worker concerned could not be ensured if the
right of residence in the territory of a Member State provided for by the first indent of Article 3(2) of Regulation No 1251/70
were to be acquired as soon as a worker had resided for at least two years in that State at some stage of his life, even in
the distant past.
To resolve that problem as the appellants propose (see paragraph 21 above), by requiring that the departure of the worker
from the host Member State for a period exceeding three months should be subjected to some form of limitation, would introduce
into Regulation No 1251/70 criteria which do not flow expressly from it.  The existence and application of such additional,
and even unclear criteria, could create uncertainty as to the legal position of workers and members of their family, whereas
that regulation must enable their rights to be clarified and established with certainty.
Furthermore, if the Community legislature had wished that periods of residence further removed from the date of the worker's
death could be taken into consideration, it would have been appropriate to include, in the wording of Regulation No 1251/70,
an express time-limit in that regard as well as conditions relating to the family members of the worker, such as the date
of his marriage.  The documents in the file also show that the appellants did not reside with Mr Givane during his first period
of employment and residence of almost three years in the United Kingdom.
In view of all the foregoing considerations, the answer to the first question must be that on a proper construction of the
first indent of Article 3(2) of Regulation No 1251/70 the period of two years' continuous residence required by that provision
must immediately precede the worker's death.
Having regard to the answer to the first question, it is not necessary to reply to the second, third, fourth and fifth questions.
Costs
The costs incurred by the United Kingdom and German Governments, and by the Commission, which have submitted observations
to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the question referred to it by the Immigration Appeal Tribunal by order of 28 April 2000, hereby rules:
On a proper construction of the first indent of Article 3(2) of 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 the period of two
years' continuous residence required by that provision must immediately precede the worker's death.
Wathelet
Timmermans
Edward
Jann
Rosas
Delivered in open court in Luxembourg on 9 January 2003.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: English.