Secretary of State for Work and Pensions v Maria Dias.
Date: 2011-07-21
40. Since the right of permanent residence provided for in Article 16(1) of Directive 2004/38 could be acquired only as from 30 April 2006 ( Lassal , paragraph 38), the question thus arises as to what is the effect, for the purposes of the acquisition of the right of permanent residence under that provision, of a period of residence such as that completed between 18 April 2003 and 25 April 2004, that is to say, Ms Dias’ third period of residence in the United Kingdom.
43. In that regard, it should be noted that the Court has already held that periods of continuous residence of five years, completed before the date of transposition of Directive 2004/38, in accordance with earlier European Union law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof ( Lassal , paragraphs 40 and 59).
48. As the Court has held on numerous occasions, the right of nationals of a Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. The grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (see Case C-408/03 Commission  v Belgium  [2006] ECR I-2647, paragraphs 62 and 63 and case-law cited).
49. Such a declaratory, as opposed to a constitutive, character of residence permits, in regard to rights, has been acknowledged by the Court independently of the fact that the permit in question was issued pursuant to the provisions of Directive 68/360 or Directive 90/364 (see, to that effect, Commission  v Belgium , paragraph 65).
54. However, as has been pointed out in paragraphs 48 to 52 of the present judgment, the declaratory character of residence permits means that those permits merely certify that a right already exists. Consequently, just as such a declaratory character means that a citizen’s residence may not be regarded as illegal, within the meaning of European Union law, solely on the ground that he does not hold a residence permit, it precludes a Union citizen’s residence from being regarded as legal, within the meaning of European Union law, solely on the ground that such a permit was validly issued to him.
59. In that connection, it should be borne in mind, first of all, that the Court has already ruled that Article 16(4) of Directive 2004/38 refers to loss of the right of permanent residence by reason of absences of more than two consecutive years from the host Member State and that such a measure may be justified because, after an absence of that duration, the link with the host Member State is loosened (see Lassal , paragraph 55).
60. Next, the Court has also held that that provision falls to be applied independently of whether the periods of residence in question were completed before or after 30 April 2006, for the reason that, since residence periods of five years completed before that date must be taken into account for the purpose of acquisition of the right of permanent residence provided for in Article 16(1) of Directive 2004/38, non-application of Article 16(4) thereof to those periods would mean that the Member States would be required to grant that right of permanent residence even in cases of prolonged absences which call into question the link between the person concerned and the host Member State ( Lassal , paragraph 56).
61. Finally, the Court has held that the application of Article 16(4) of Directive 2004/38 to continuous periods of five years’ legal residence completed before 30 April 2006 implies, in particular, that absences from the host Member State of less than two consecutive years occurring after those periods but before that date are not such as to affect the link of integration of the Union citizen concerned and, accordingly, those absences are not such as to affect the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 ( Lassal , paragraphs 57 and 58).
63. Even though Article 16(4) of Directive 2004/38 refers only to absences from the host Member State, the integration link between the person concerned and that Member State is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that Member State without having a right of residence.
64. In that regard, it should be noted, as the Advocate General has stated in points 106 and 107 of her Opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in Article 16(1) of Directive 2004/38 is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host Member State.
65. As the situations are comparable, it follows that the rule laid down in Article 16(4) of Directive 2004/38 must also be applied by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date.