Opinion of the Advocate General — ECLI:EU:C:2013:640
Date: 2013-10-03
Language of the case: English
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary — Judgment of the Court (Second Chamber), 16 January 2014 1. Citizenship of the Union — Right to move and reside freely on the territory of the Member States — Directive 2004/38 — Right of permanent residence of third-country nationals who are family members of a Union citizen who has acquired that right in the host Member State — Acquisition of that right by the third-country national following a period of continuous residence of five years with the Union citizen in the host Member State — Taking into consideration of periods of imprisonment of that national in that Member State — Not included (European Parliament and Council Directive 2004/38, Art. 16(2)) 2. Citizenship of the Union — Right to move and reside freely on the territory of the Member States — Directive 2004/38 — Right of permanent residence of third-country nationals who are family members of a Union citizen who has acquired that right in the host Member State — Acquisition of that right by the third-country national following a period of continuous residence of five years with the Union citizen in the host Member State — Interruption of the continuity of residence by periods of imprisonment of that national in that Member State — Not included (European Parliament and Council Directive 2004/38, Art. 16(2) and (3)) 1. Article 16(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 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. The acquisition, in accordance with Article 16(2) of Directive 2004/38, of the right of permanent residence of family members of a Union citizen who are not nationals of a Member State is dependent, in any event, not only on the fact that the Union citizen himself satisfies the conditions laid down in Article 16(1) of that directive, but also on the fact that those family members have resided legally and continuously ‘with’ that citizen for the period in question, the word ‘with’ reinforcing the condition that those family members must accompany or join that same citizen. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. Such integration, which is a precondition of the acquisition of the right of permanent residence is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host Member State. The imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a Member State of the right of permanent residence for the purposes of Article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence. (see paras 23-27, operative part 1) 2. Article 16(2) and (3) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 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. Under Article 16(2) of Directive 2004/38, the acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State is dependent, amongst other conditions, on the fact that those family members have legally resided with that citizen for a continuous period of five years. In addition, that condition of continuity of legal residence satisfies the integration requirement which is a precondition of the acquisition of the right of permanent residence. (see paras 29, 30, 32, operative part 2)