Case Study - Carussi v Secretary of State: IA/22008/2010 (unreported)
The Home office have consistently argued that Permanent Residence can only be acquired by European Nationals from the 'Accession States' such as Poland1 and Romania five years post the accession of their countries to the European Union. The logic is that they were could not be residing 'in accordance with the Citizen's Directive'2 (which governs the acquisition of Permanent Residence) until they were citizens of the EU; though this is controversial. The Directive merely requires that the residence be 'legal'3 and the European Commission have written to the UK authorities challenging their approach. However, caselaw in the UK has followed the Secretary of State's position – until now. Duncan Lewis brought a successful appeal in the case of a Romanian national who sought to include time spent in the UK pre-accession.
In 1993 Bulgaria and Romania signed the Association Agreements with EU member states which established the framework for their gradual integration into the European Union. The EC treaty provides under Article 310 EC that the Community may conclude with a third state, a union of states or an international organisation an agreement establishing association. Article 399 provides that such agreements shall be binding on the institutions of the Community and on member states. Agreements entered into by both the EC and Member states with a third party are mixed agreements , but do not for that reason cease to be enforceable Community Law. (See 7.152 MacDonald 7th Edition.)4
The Association Agreement between Romania and EU member states provided for a right of establishment to pursue economic activities as a self employed person. It placed no limitation of the type of activity or duration for which it was required to last. Subject to the requirement that activity is effective and genuine, not marginal or ancillary a self employed Bulgarian window cleaner was just as able to qualify under the agreement as a graduate or an IT consultant.5
On the 1st January 2007, Bulgaria and Romania acceded to the European Union. The Accession treaty provided that existing member states may, as a derogation from the usual position under Community Law, regulate access to their labour markets by Bulgarian and Romanian nationals and the 2006 Accession regulations were introduced to implement this regulation. Outside of the derogation for wage earning employment, Bulgarian and Romanian nationals enjoyed all other benefits of EU membership on the same basis as other member state.
The decision in Carussi in the First Tier Tribunal
In this case, a Romanian national was accepted by the Secretary of State to have been self employed for five years including a period prior to 2007 when the Appellant had exercised a right of establishment under the Association Agreement with Romania. On the 1st January 2007, following the implementation of the Accession Regulations, she became an EU national exercising this right.
The Appellant did not satisfy the Tribunal that she qualified under the limited provisions made in the Immigration Rules (222 to 223 A), for those who were present in the United Kingdom under Association Agreements who then continued in self employment post accession, to be granted Indefinite Leave to Remain. However, these are subject to conditions which are not found in European Law, in respect of EU nationals in self employment seeking to establish themselves as qualified persons. For this reason, it is arguable that the Immigration Rules frustrated the ability of the Appellant in Carussi to acquire permanent residence, and therefore she relied upon the Citizens Directive upon directly.
The Secretary of State maintained that the Appellant could not accrue permanent residence until 2012, five years after the Accession regulations came into force. However, the Appellant contended that she could satisfy the five years lawful residence in a member state criterion in accordance with Article 16 of the Directive at the date of the hearing, and that he was therefore entitled to Permanent Residence.
The question of what defines "lawfully" resident for the purpose of Article 16 was considered in GN (EEA Regulations: Five years Residence) Hungary  UKAIT 00073.
The Appellant's submission incorporates an implication that that word means "lawfully" in accordance with national law. We see no basis for reading that meaning into the word "legally" in Article 16 of the Directive. When one sees a word of that sort in any legal instrument one interprets it normally within the instrument's own legal context. The context of the Directive is European Law, and for that reason we read "legally" in Article 16 (1) as meaning in accordance with European law. If there were any doubt about that it would in our view be resolved by paragraph 17 of the preamble to which the Appellant has referred us, which indicates that the intention is to give a right of permanent residence to those "who have resided in the host member state in compliance with the conditions laid down in this Directive" for five years
The case of Carussi was distinguishable from GN, by the reason that the Appellant who was the subject of proceeding was found to have exercised a right of establishment as a self employed person under the aegis of the Association Agreement prior to the 1st January 2007, and was therefore resident in the UK in accordance with Community law for the period prior to Romania's Accession to the EU. The tribunal held that this period could contribute to the five year period of lawful residence pursuant to Article 16 of the Directive.
In contrast the Appellant in GN, prior to the accession of Hungary to the EU in 2004, was lawfully resident in the UK as a student in accordance with national law, and not under the Association Agreement between Hungary and the EU. It was after Hungary's accession that GN took up employment under the Workers Registration Scheme and began exercising treaty rights.6
The implication of the decision is therefore that if residence was regulated by European law, albeit not by the Citizen's directive, that will satisfy the 'lawful residence' requirement of the Directive, whilst residence that is lawful solely on the basis of UK national law, that will not suffice for the purposes of Permanent Residence. This point has wider implications than are immediately apparent thanks to a recent decision that held that an application made on the basis of 'five years lawful residence' could be made years after the period had expired. Further challenges can confidently be expected.
1 The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, Malta and Cyprus joined the EU on 1st May 2004. Nationals of the "A8" countries, which exclude the two last-named countries do not yet possess full EU rights in the United Kingdom. The accession probation period for A8 nationals was extended for 2 more years from 30 April 2009. The Accession (immigration and Worker Registration) Regulations 2004 have been amended to show that the accession period will now end on 30 April 2011. Bulgaria and Romania joined the EU on 1st January 2007 and are accordingly known as the "A2" countries
2. The Directive on the right of EU citizens to move and reside freely in the European Union - Directive 2004/38/EC (often quoted as 2004/58/EC)
3. Article 16 of the Directive
4. Macdonald's Immigration Law and Practice 7th ed, Ian MacDonald and Ronan Toal, LexisNexis Butterworths (2008)
5.(Rodgers and Scannell 2004)
6. It should be noted that the approach of the Tribunal in GN led that appellant to petition the European Parliament. The petitions committee have taken up his case with the UK authorities.
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