# C_2014085EN.01000601.xml

| 22.3.2014 | EN | Official Journal of the European Union | C 85/6 |
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22.3.2014

EN

Official Journal of the European Union

C 85/6

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Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) London — United Kingdom) — Nnamdi Onuekwere v Secretary of State for the Home Department

(Case C-378/12) (1)

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(Request for a preliminary ruling - Directive 2004/38/EC - Article 16(2) and (3) - Right of permanent residence of third-country nationals who are family members of a Union citizen - Taking into consideration of periods of imprisonment of those nationals)

2014/C 85/10

Language of the case: English

Referring court

Referring court

Upper Tribunal (Immigration and Asylum Chamber) London

Parties to the main proceedings

Parties to the main proceedings

Applicant: Nnamdi Onuekwere

Applicant:

Defendant: Secretary of State for the Home Department

Defendant:

Re:

Re:

Request for a preliminary ruling — Upper Tribunal (Immigration and Asylum Chamber) London — Interpretation of Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of permanent residence — Concept of legal residence for a period of five years in the host Member State — Possibility of a period of imprisonment being taken into account.

Operative part of the judgment

Operative part of the judgment

| 1. | Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration in the context of the acquisition by that national of the right of permanent residence for the purposes of that provision. |
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1.

Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration in the context of the acquisition by that national of the right of permanent residence for the purposes of that provision.

| 2. | Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods. |
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2.

Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods.

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(1)  OJ C 295, 29.9.2012.

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