Nnamdi Onuekwere v Secretary of State for the Home Department.
Date: 2014-01-16
18. As a preliminary point, it must be observed that, in accordance with 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, in any event, on the fact that, first, the Union citizen himself satisfies the conditions laid down in Article 16(1) of that directive and, secondly, that those family members have resided with him for the period in question (see Case C‑529/11 Alarape and Tijani [2013] ECR, paragraph 34).
19. In that regard, the requirement for family members of a Union citizen who are not nationals of a Member State to reside with that citizen in the host Member State for the period concerned implies that those family members necessarily and concurrently have a right of residence under Article 7(2) of Directive 2004/38 as family members accompanying or joining that citizen, in such a way that only the periods of residence of those family members which satisfy the condition laid down in Article 7(2) of that directive may be taken into consideration (see Alarape and Tijani , paragraphs 36 and 37).
24. Secondly, it must be recalled that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly 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 (see Case C-162/09 Lassal [2010] ECR I-9217, paragraphs 32 and 37).
25. Such integration, which is a precondition of 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 temporal factors but also on qualitative elements, relating to the level of integration in the host Member State (see Case C-325/09 Dias [2011] ECR I-6387, paragraph 64), to such an extent that the undermining of the link of integration between the person concerned and the host Member State justifies the loss of the right of permanent residence even outside the circumstances mentioned in Article 16(4) of Directive 2004/38 (see, to that effect, Dias , paragraphs 59, 63 and 65).
26. 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.
30. That condition of continuity of legal residence satisfies the integration requirement which is a precondition of the acquisition of the right of permanent residence, noted in paragraphs 24 and 25 of the present judgment, and the overall context of Directive 2004/38, which introduced a gradual system as regards the right of residence in the host Member State, which reproduces, in essence, the stages and conditions set out in the various instruments of European Union law and case-law preceding the directive and culminates in the right of permanent residence (see Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja [2011] ECR I‑14051, paragraph 38, and Alarape and Tijani , paragraph 46).