This post looks at Advocate General Yves Bot’s recent opinion on Directive 2004/38/EC and the right of permanent residence. The opinion “carries no legal weight”. Nevertheless, as is the case with the vast majority of such opinions, it is likely that the Court of Justice of the European Union will adopt it.
Nnamdi Onuekwere (O), a Nigerian, claimed to enter the UK in 1999. His Irish wife and him had two children. O was granted a 5-year residence permit as the spouse of a Union citizen. In 2000, O was sentenced to 9 months’ imprisonment, suspended for 2 years, for having sexual intercourse with a mentally ill patient at the hospital where he worked. Approximately 3 years later, in 2003, he was arrested for unlawfully facilitating another person’s entry into the UK.
While on bail O failed to attend his court date and was sentenced to 2½ years’ imprisonment for his 2003 offence. Upon O being freed in late 2005, the Home Secretary wished to deport him and a year later his appeal was allowed because his wife was exercising Treaty rights in the UK. In 2007, during the Christmas season, O was arrested for being in unlawful possession of false papers for which he received, in mid-2008, a sentence of 2¼ years’ imprisonment.
Following O’s release in 2009, the Home Secretary sought to deport him but the Upper Tribunal found that notwithstanding the fact that he was not permanently resident in the UK (owing to his imprisonment) he could not be deported on public policy grounds. Subsequently, O applied for a permanent residence card, which was refused. He appealed and the First-tier Tribunal found that although not a permanent resident on the basis of 5 years’ continuous residence, O was entitled to a residence card. O – whose residence, between 2 December 1999 and 16 September 2004 (when he was imprisoned) amounted to 4 years and 10 months – appealed to the Upper Tribunal: he argued that by virtue of Case C-145/09 Land Baden-Württemberg v Tsakouridis  ECR I-11979 imprisonment, which was only a factor to be taken into account, did not break continuity of residence.
Against that history, the Upper Tribunal referred a couple of questions to the CJEU about the proper interpretation Article 16 of the Directive.
II. The Questions
(1) In what circumstances, if any, will a period of imprisonment constitute legal residence for the purposes of the acquisition of a permanent right of residence under Article 16 of the Directive?
(2) If a period of imprisonment does not qualify as “legal residence”, is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purposes of calculating the period of 5 years needed to establish a permanent right of residence under the Directive?
III. Advocate General Bot
The AG proposed that the CJEU should answer these questions in the following terms:
(1) A period of imprisonment cannot be qualified as “legal residence” and may not therefore be taken into account in the calculation of the period of 5 years required for the purposes of acquisition of the right of permanent residence; and
(2) Periods of legal residence before and after imprisonment cannot be aggregated for the purposes of calculating that period of 5 years because imprisonment interrupts that period.
(1) “Legal residence” and Article 16 of Directive 2004/38/EC
Tsakouridis and Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri  ECR I-5257 to which O and the Upper Tribunal referred were irrelevant to the present case (paras AG 25 & 28).
Tsakouridis turned on whether absences from the host member state in the course of 10 years preceding the decision to expel a Union citizen precluded him from enjoying enhanced protection within the meaning of Article 28(3)(a) of the Directive. The CJEU clarified that where the Union citizen was forcibly returned to the host state to serve his sentence, time spent in prison may be considered in the overall evaluation in respect of whether or not past integrating ties with the host state have been broken (para AG 27). The Tsakouridis Court did not appraise the concept of “legal residence” – which is missing from the express wording of Article 28. Rather, emphasis was placed on precisely interpreting the hierarchy of protection against expulsion under Article 28 which must be discerned from the conditions for the grant and loss of the right of permanent residence (para AG 28).
Orfanopoulos and Oliveri concerned determining the effect of “imprisonment on the retention of the status of worker for the purposes of maintenance of the right of residence” (para AG 26).
More recent case law, however, provided the CJEU with the opportunity to explain the idea of “legal residence” set out in Article 16(1) of the Directive and in Cases C-424/10 and C-425/10 Ziolkowski and Szeja  ECR I-0000 it was said that the words “have legally resided” turned on a period of residence complying with the conditions set out in the Directive, especially Article 7(1): see Ziolkowski, para 46.
Moreover, Case C-529/11 Alarape and Tijani  ECR I-0000 clarified that if Article 16(2) of Directive 2004/38 is to apply, then the acquisition of the right of permanent residence by third country nationals of a Union citizen depends on the Union citizen satisfying the conditions contained in Article 16(1) and on the family members having resided with the Union citizen for the period in question (para AG 31).
A third country national family member’s right of permanent residence under Article 16(2) is such that only periods of residence complying with the terms of Article 7(2) of the Directive may be counted: the third country national’s right depends on the Union citizen’s right of permanent residence and the former’s right is inextricably linked to the latter’s right of residence obtained under Article 7(1) (paras AG 32 – 34).
O submitted that although he was in prison, the 5 years’ legal residence stipulated by Article 16(2) of the Directive was inconsequential because his Union citizen wife met the requirements of Article 7(1) and was therefore permanently resident in the host member state – namely the UK. This meant that O too was so resident. He also argued that Article 16(2)’s express requirement of the third country national residing with the Union citizen did not mean that cohabitation was necessary and that periods of imprisonment could be counted as residence with the Union citizen.
However, the above line of argument was rejected (paras AG 36 – 57).
As is well known, in the context of migrant workers cohabitating with third country national family members, in Case 267/83 Diatta v Land Berlin  ECR 567 the CJEU held that to have a right of residence the family member need not necessarily live permanently with the worker. In sum, in terms of Article 16(2) of the Directive, the requirement to live with the Union citizen for 5 years is not equivalent to permanent cohabitation under the same roof (para AG 37).
The Directive – in recitals 3 and 17 – aims to strengthen social cohesion in which permanent residence, stronger than the “mere” right of freedom of movement, is a key ingredient. The legislation aims to confer on Union citizens, who meet the requirements for obtaining permanent residence, to be treated (“almost”) equally with member states’ nationals (paras AG 43 – 44: referring to Ziolkowski and Szeja, paras AG 50 – 51).
The “strong” rights of third country nationals who are family members of Union citizens were similarly conceived by the European Union legislature because (i) family unity – “intrinsically linked to the right to protection of family life” – must be preserved (ii) granting permanent residence to third country nationals aims to maintain family unity by assimilating/integrating them into the host member state (iii) “in reality” after living in the host state for 5 years third country nationals are to be treated (“virtually”) on the same footing as Union citizens and (iv) the framework created by the Directive, and the creation of a right of permanent residence, rests on the belief that “genuine integration must … be rewarded” or minimally strengthen affinity with the host state (paras AG 45 – 47).
So logically the rewards of genuine integration depend on respect for the laws/morals of the host society and although the right of permanent residence turns on time and geography, it is also the case that “qualitative elements” connected to the degree of integration in the host state matter (paras AG 48 – 49: referring to the decision in Case C-325/09 Dias  ECR I-6387 and the instant AG’s opinion in Case C-348/09 I.  ECR I-0000).
Imprisonment, especially recidivism, points to limited integration and criminality negates the desire to integrate in the host state’s society and therefore O’s “ridiculous” arguments contradicted the Directive’s spirit and objective of promoting social cohesion by creating a right of permanent residence (paras AG 50 – 52). On the Tsakouridis point, AG Bot opined that although rehabilitation and integration exact that periods of residence in prison should be taken into account, the imposition of a criminal sentence nevertheless pointed to the offender’s disrespect for the host society’s norms (paras AG 53 – 54). While rehabilitation (which is required precisely because there is a lack of integration) is important, the retributive element of a criminal sentence is designed to make the offender “pay” for his crime (paras AG 54 – 55). A convicted criminal cannot rely on a period of imprisonment to argue a case for permanent residence because acquiring such a right is a function of respecting “social values which he specifically disregarded by committing his criminal act” – ultimately, the rehabilitative function of imprisonment cannot be played off against the retributive function (para AG 55). Even in instances of house arrest or part-release, where prisoners must return to custody overnight, it is not possible to deem someone to be legally resident under Article 16(2) of the Directive and therefore time spent in prison does not count towards the 5 years required to acquire the right of permanent residence (paras AG 56 – 57).
(2) Aggregating periods of legal residence for calculating 5 years
As set out above, the second question – “intrinsically” linked to the first – enquired whether the continuity of legal residence is interrupted by imprisonment.
For Germany, Article 16(3) of the Directive – which allows temporary absences of 6 months a year or an absence of 12 months because of pregnancy, childbirth, serious illness, study etc. – applied in the instant case by analogy. Continuity of legal residence to achieve permanent residence would therefore be interrupted if these thresholds were exceeded in respect of imprisonment. Or lesser periods would achieve a similar result where it is clear that the criminality in question shows an unwillingness to integrate in the host state or to respects its values. For the Commission, counting time spent in prison hinges on the degree of integration prior to imprisonment, the seriousness of the offence and re-offending and therefore a proportionality assessment is imperative.
However, both views were rejected (paras AG 61 – 74). Read with recitals 17 and 18 and the travaux préparatoires, Article 16(2) contains a presumption that strong links of integration with the host member state by a family member like O are developed and enabled through residence with the Union citizen continuously for 5 years (para AG 63). Flowing from the answer to the first question, to allow periods of residence before and after imprisonment to be lumped together is tantamount to undermining the “effectiveness” of the system envisaged by Article 16(2) because, rather than integration, transgressing the laws of the host state points to detachment from its society (para AG 64). This is all the more so in cases, like O’s, concerning recidivism. To add pre and post imprisonment periods of residence not only prevaricates the Directive’s goals (and therefore distorts the true construction of the words “continuous period of 5 years”) but also ignores that the period of integration must be continuous (para AG 65).
Properly analysed Article 16(3) sets out absences from the host member state. So logically periods of imprisonment within the territory of the host member state simply do not fit the parameters of that provision because it has nothing to do with criminality; rather allowances are made for temporary absences of Union citizens and their family members from the territory of the host state and their willingness to integrate in its society is not thereby decreased (paras AG 66 – 68).
Similarly, the Commission’s submission – that in cases of minor criminality proportionality should rescue offenders and that national courts should mitigate the inflexibility of the rule by aggregating pre and post sentence periods of residence – had no purchase because of the divergence of the criminal laws of the 28 countries of the Union (paras AG 70 – 71). Given that different offences attract different penalties in the member states, the Commission’s proposed application of proportionality would inevitably “call into question the principle of legality” (para AG 71).
It is for the European Union legislature, and not the Court, to set the standard to determine the basis and thresholds governing whether imprisonment interrupts the requisite period under Article 16(2) (para AG 72).
Time spent in prison – “a period of residence” – does not count towards the 5 years needed for permanent residence unless it is pre-trial detention followed by an acquittal or a decision not to proceed. In such cases “pre-trial detention is not the execution of a sentence following conviction for an offence” and during the investigative process, which may involve keeping the accused in custody, the presumption of innocence applies (para AG 73).
Therefore, the AG opined that Article 16(2) periods of legal residence before and after imprisonment cannot be aggregated for the purposes of calculating the period of 5 years, because imprisonment interrupts that period (para AG 74).
In R (Essa) v Upper Tribunal (Immigration & Asylum Chamber) & Anor  EWCA Civ 1718, at para 16 Maurice Kay LJ took the view that by saying that it is “incumbent upon a primary decision-maker who makes an expulsion decision to state precisely in what way that decision does not prejudice the offender’s rehabilitation” in para 95 of his opinion in Tsakouridis Bot AG was being “overprescriptive”. His lordship felt that the CJEU at para 50 did adopt part of para AG 95; but the Court did not adopt para AG 95 in its entirety because it was too much of a “straitjacket”.
In making his case O relied on Bot AG’s opinion (para 47 et seq) in Tsakouridis where, citing Mastromatteo v Italy 37703/97  ECHR 694, he had said that “observance of the principle that criminal sanctions must have the function of rehabilitation is indissociable from the concept of human dignity and, as such, I am of the opinion that it belongs to the family of general principles of Union law” (para AG 50).
In his robust opinion in O’s case, by saying that Orfanopoulos and Oliveri and Tsakouridis were irrelevant to the present case, Bot AG took the opportunity to distinguish the conditions for the grant and loss of the right of permanent residence from those connected to the loss of enhanced protection. He also emphasised the importance of the criminal sentence serving “the essential purpose of retribution” (para AG 55).
We can only wonder whether Bot AG is distancing himself from any weakness which can be attributed to his opinion in Tsakouridis where his approach can perhaps be described as soft?
“Controversial” Non-immigration Cases
In other fields, criticism of Bot AG is much sharper than Maurice Kay LJ’s respectful remarks highlighted above.
In Case C-34/10 Oliver Brüstle v Greenpeace eV  1 CMLR 41, which relates to the patentability of stem cells, Bot AG’s opinion (see press release) – that any patent derived from stem cells violates human dignity and ethical principles, and so must be banned – irritated people with incurable medical conditions.
For Alasdair Palmer, whose Telegraph article incorrectly locates the Court in Brussels rather than Luxembourg, Bot AG did not say that “stem cell research itself should be banned, but he might as well have.”
Just recently the High Court (Chancery Division) referred an interesting question on Directive 98/44/EC (the Biotech Directive) to the CJEU in International Stem Cell Corporation v Comptroller General of Patents  EWHC 807 (Ch).
If Bot AG delivers the opinion in this case it will be interesting to see what he says?