(Reference for a preliminary ruling from the Immigration Appeal Tribunal (United Kingdom))

«(Freedom of movement for workers – Regulation (EEC) No 1251/70 – Right of workers to remain in the territory of a Member State after having been employed in that State – Right of residence of members of the family of a deceased worker – Requirement of the worker's continuous residence for at least two years)»

Opinion of Advocate General Alber delivered on 16 May 2002

Judgment of the Court (Fifth Chamber), 9 January 2003

Summary of the Judgment

Freedom of movement for persons – Workers – Right to remain in the territory of a Member State after having been employed there – Right of residence of family members of a deceased worker – Requirement of the worker's continuous residence for at least two years – Period must immediately precede the death (Commission Regulation No 1251/70, Art. 3(2), first indent)

The first indent of Article 3(2) of Regulation No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State, which provides that the members of the family of a worker who dies during his working life and before having acquired the right to remain in the territory of the host Member State shall be entitled to remain there permanently on condition that such worker, on the date of his decease, had resided continuously in the territory of that Member State for at least two years, is to be interpreted as meaning that the period of two years' continuous residence must immediately precede the worker's death. see para. 50, operative part

JUDGMENT OF THE COURT (Fifth Chamber) 9 January 2003 (1)

((Freedom of movement for workers – Regulation (EEC) No 1251/70 – Right of workers to remain in the territory of a Member State after having been employed in that State – Right of residence of members of the family of a deceased worker – Requirement of the worker's continuous residence for at least two years))

In Case C-257/00,

REFERENCE to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

Secretary of State for the Home Department,

on the interpretation of Article 3(2) of Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402),

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans, D.A.O. Edward, P. Jann and A. Rosas (Rapporteur), Judges,

Advocate General: S. Alber, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

─

the United Kingdom Government, by J.E. Collins, acting as Agent, and E. Grey, barrister,

─

the German Government, by W.-D. Plessing, acting as Agent,

─

the Commission of the European Communities, by N. Yerrell, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 May 2002,

gives the following

By order of 28 April 2000, received at the Court on 26 June 2000, the Immigration Appeal Tribunal referred to the Court for a preliminary ruling under Article 234 EC five questions on the interpretation of Article 3(2) of Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402).

Those questions were raised in the course of proceedings brought by Mrs Givane and others, who are Indian nationals and members of the family of a deceased worker, himself a Portuguese national, against the Secretary of State for the Home Department (hereinafter the Secretary of State) concerning the latter's refusal to grant them indefinite leave to remain in the United Kingdom.

Legal framework

Community legislation

Under Article 48(1) of the EC Treaty (now, after amendment, Article 39(1) EC), freedom of movement for workers is to be secured within the Community. Article 48(3)(d) states that it is to entail the right to remain in the territory of a Member State after having been employed in that State, subject to conditions to be embodied in implementing regulations to be drawn up by the Commission.

Articles 1 to 5 of Regulation No 1251/70 read as follows: Article 1 The provisions of this regulation shall apply to nationals of a Member State who have worked as employed persons in the territory of another Member State and to members of their families, as defined in Article 10 of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community. Article 2

(a) a worker who, at the time of termination of his activity, has reached the age laid down by the law of that Member State for entitlement to an old-age pension and who has been employed in that State for at least the last twelve months and has resided there continuously for more than three years;

(b) a worker who, having resided continuously in the territory of that State for more than two years, ceases to work there as an employed person as a result of permanent incapacity to work. If such incapacity is the result of an accident at work or an occupational disease entitling him to a pension for which an institution of that State is entirely or partially responsible, no condition shall be imposed as to length of residence;

(c) a worker who, after three years' continuous employment and residence in the territory of that State, works as an employed person in the territory of another Member State, while retaining his residence in the territory of the first State, to which he returns, as a rule, each day or at least once a week. Periods of employment completed in this way in the territory of the other Member State shall, for the purposes of entitlement to the rights referred to in subparagraphs (a) and (b), be considered as having been completed in the territory of the State of residence.

Article 3

─ the worker, on the date of his decease, had resided continuously in the territory of that Member State for at least two years; or

─ his death resulted from an accident at work or an occupational disease; or

─ the surviving spouse is a national of the State of residence or lost the nationality of that State by marriage to that worker.

Article 4

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

United Kingdom legislation

6. The relevant provisions of national law are the Immigration Act 1971 and the Immigration Act 1988, the Immigration (European Economic Area) Order 1994 and the United Kingdom Immigration Rules adopted by the United Kingdom Parliament in 1994 (House of Commons Paper 395) (hereinafter the Immigration Rules), in their version in force at the material date in the main proceedings, which govern entry to, and residence in the United Kingdom.

8. Section 7(1) of the Immigration Act 1988, which creates an express exception from the general regime requiring the grant of leave, in favour of persons exercising enforceable Community rights, reads as follows: A person shall not under the [Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any other provision made under Section 2(2) of the European Communities Act 1972.

The dispute in the main proceedings and the questions referred for a preliminary ruling

10. Mr Givane, a Portuguese national, entered the United Kingdom on 15 April 1992 to work there as a chef. He obtained a five-year residence permit. He was continuously resident in the United Kingdom until 10 April 1995, the date on which he went to India to stay for 10 months.

11. On 16 February 1996, Mr Givane returned to the United Kingdom accompanied by his spouse, Mrs Givane, and their three children, Vashuben, Vinodbhai and Subashkumar, all four being of Indian nationality and the appellants in the main proceedings (hereinafter the appellants). Mr Givane was in possession of an EU residence permit valid until 21 July 2002, whereas the others had obtained an entry clearance granted to family members of nationals of the European Economic Area (EEA Family Permit).

13. The appellants applied for indefinite leave to remain in the United Kingdom under Article 3(2) of Regulation No 1251/70, relying on the right of residence of family members of a deceased worker. On 21 August 1998, the Secretary of State refused their application on the ground that, at the date of his death, Mr Givane did not satisfy the test, laid down by that provision, of continuous residence in the host Member State for at least two years. According to the Secretary of State, that period of residence must immediately precede the worker's death.

14. The appellants appealed against that decision to the Immigration Adjudicator. That appeal was rejected by decision of 26 June 1999, on the ground that Article 3(2) of Regulation No 1251/70 required, in Mr Givane's case, residence in the United Kingdom for a continuous period of two years immediately preceding his death.

15. The appellants appealed against that decision to the Immigration Appeal Tribunal. They claim that Article 3(2) of Regulation No 1251/70 requires only that Mr Givane resided continuously in the United Kingdom for two years at any time prior to his death. He satisfied that requirement between April 1992 and April 1995.

16. Since it considered that the dispute before it required the interpretation of Article 3(2) of Regulation No 1251/70, the Immigration Appeal Tribunal decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

4. If the answer to question 3 is in the affirmative, what those limitations are; and what factors must be considered by the national court in seeking to establish whether breaks in the continuity of residence have broken the entitlement to rely on past periods of residence?

The first question

17. By its first question, the referring court is asking, in essence, whether the first indent of Article 3(2) of Regulation No 1251/70 is to be interpreted as meaning that the period of two years' residence required by that provision must immediately precede the worker's date of death or whether it is sufficient that he has completed such a period of residence at some time in the more remote past.

Observations submitted to the Court

18. The appellants did not take part in the proceedings before the Court. Their arguments are taken from the order for reference.

19. It is apparent therefrom that they submit that their application for indefinite leave to remain in the United Kingdom should be granted given that Mr Givane resided continuously in the United Kingdom between April 1992 and April 1995, that is for a period exceeding two years. The words on condition that the worker, on the date of his decease, had resided continuously, in the first indent of Article 3(2) of Regulation No 1251/70, do not impose any additional requirement as to when such continuous residence is to take place.

21. The appellants admit, none the less, that, where the two years of continuous residence predate an absence of the worker of more than three months from the host State, such an absence should be subject to some form of reasonable and proportional limitation.

22. The United Kingdom and German Governments, and the Commission, submit that the first indent of Article 3(2) of Regulation No 1251/70 is to be interpreted as meaning that a period of two years' continuous residence must immediately precede the worker's death.

23. Those Governments rely on the wording of the first indent of Article 3(2) of Regulation No 1251/70 and particularly on the words on the date of his decease and resided continuously. The continuous residence commences at the moment when the worker enters the Member State concerned and ends, in accordance with Article 4 of that regulation, if that worker is absent for more than three months. The United Kingdom Government maintains that such interpretation is strengthened by the French (depuis au moins 2 années) and German (seit mindestens 2 Jahren) versions of that provision. Moreover, the German Government points out that the word continuous is used in other places in Regulation No 1251/70, for example in Article 2(1)(a) and (b), provisions which refer to minimum periods of residence immediately prior to the operative event.

24. Those Governments also rely upon the objectives of Regulation No 1251/70. That regulation is intended to ensure that the right to reside in the host Member State, provided for by Article 48(3)(d) of the EC Treaty, may be exercised only if the persons concerned have established a significant link with that State and if there has been a certain putting down of roots in it. According to those Governments, the necessity for a certain stability of residence is shown, in this case, by the requirement, at the date of the worker's death, of a continuous period of residence for at least two years in the Member State concerned.