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06 January 2012

The Court of Justice of the European Union: Another decision on how to acquire permanent residence

C-424/210 Ziolkowski 21 December 2011

Acquiring permanent residence under Directive 2004/38 (the Citizen’s Directive) seems both to be popular among EU citizens living in a host Member State but less so among Member State authorities. Already in 2010 and 2011, we have had a couple of decisions from the CJEU where one Member State (the UK) has refused permanent residence to nationals of other Member States on a variety of grounds (see my earlier notes on the cases of Lassal1 and Dias2). In both cases the UK lost at least in part. In this new decision from the last day of decisions in 2011 at the Luxembourg court, Germany was resisting applications for permanent residence by Polish nationals (but unlike the UK, Germany was successful in seeing off the claims).

Two cases were joined: Mr Ziolkowski, a Polish national who had lived in Germany on the basis of humanitarian grounds from July 1991 and Ms Szeja who had lived there on the same grounds since 1988. They both became EU citizens on 1 May 2004 (the date of enlargement of the EU to include Poland). They both sought permanent residence on the basis of more than five years residence in Germany on the basis of German national residence permits. Their applications were refused as they were unable to support themselves economically and were not workers or self employed.

The first question was whether the two Polish nationals are persons “who have been residing legally” in Germany according to Article 16(1) Directive 2004/38 on acquiring permanent residence. The Court held that this phrase must be interpreted in a uniform manner across the EU so its contents are not according to national law (para 33). On the one hand this is good news for EU nationals as it means that Member States cannot claim that they are illegally present because they do not fulfil national immigration rules (or possibly did not when they were treated as third country nationals because their state of nationality had not yet joined the EU). However there is a flip side.

The Court held that as the concept of legal residence implied by the term ‘have resided legally’ in the Member State has an EU meaning, it means that all periods of residence for the purposes of qualifying for permanent residence must fulfil the conditions of Article 7 of the Directive, ie the individual must have been a worker or self employed, a service provider or recipient, a student able to support him or herself and covered by health insurance or an economically inactive person with sufficient resources and health insurance not to be a potential burden on social assistance or security (para 46). So, the Court goes on, periods of residence which do not fulfil the Article 7 conditions do not count for the purposes of acquiring permanent residence under Article 16 (para 47). In coming to this decision, the Court considered and rejected Article 37 Directive 2004/38 which states that the Directive does not affect any laws or regulations which would be more favourable for persons covered by the Directive (para 48).

I have argued elsewhere, that absences from the labour market of a Member State during the five years to acquire permanent residence should be treated in the same way as absences from the territory (see my comments on Dias). This position is neither expressly supported nor rejected in this decision, the question was not before the Court (para 51). However, the Court confirms its position in Lassal that periods of qualifying residence which took place before the individual became a citizen of the Union count for the purposes of the five year rule to get permanent residence (para 62). The question arose specifically in the case of accession but presumably the same must apply if the individual became a citizen of the Union by other means (such as naturalization etc). This might be the case for instance in respect of someone who marries an EU national whose national law on acquisition of citizenship permits spouses to obtain citizenship even if they have not resided in the state.

In sum, the case means that EU nationals can acquire permanent residence under Article 16(1) Directive 2004/38 where they have accumulated five years of residence in the host state in accordance with Article 7(1) of the Directive, irrespective of whether they were EU nationals at the time. But periods of residence in a host Member State where the individual does not fulfil the conditions of Article 7(1) of the Directive do not count at all towards acquiring permanent residence.


Elspeth Guild, Kingsley Napley LLP, London

6 January 2012.


1 C-162/09 7 October 2010.

2 C-325/09 21 July 2011.