OPINION OF ADVOCATE GENERAL
BOT
delivered on 3 October 2013 (1)
Case C‑378/12
Nnamdi Onuekwere
v
Secretary of State for the Home Department
(Request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom))
(Right of Union citizens to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 16 – Continuity of residence required in order to acquire the right of permanent residence – Taking into account periods of imprisonment in the host Member State)
1. This request for a preliminary ruling requires the Court to explain the concept of ‘legal residence’ within the meaning of Article 16(2) of Directive 2004/38/EC. (2) That provision provides for the grant of a right of permanent residence for members of the family of a Union citizen who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
2. More specifically, the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom), asks the Court whether a period of residence in prison can be regarded as legal within the meaning of that provision.
3. Were the Court to respond in the negative to that question, the referring court seeks to ascertain whether, for the purposes of the calculation of that five year period, it is possible to aggregate periods of legal residence before and after imprisonment.
4. In this Opinion I will state the reasons why, in my opinion, a period of imprisonment cannot be classified as ‘legal residence’, within the meaning of Article 16(2) of Directive 2004/38, and cannot therefore be taken into account in the calculation of the period of five years required for the purposes of the acquisition of the right of permanent residence. I will then explain why I consider that periods of legal residence before and after a period of imprisonment may not be aggregated for the purposes of the calculation of that period, the effect of imprisonment being to interrupt the five-year period.
I – Legal context
A – Directive 2004/38
5. Directive 2004/38 consolidates and simplifies European Union legislation concerning the free movement of persons and the right of residence of nationals of EU Member States and of their family members.
6. The directive removes the obligation of Union citizens to obtain a residence card, introduces a right of permanent residence for those citizens and their family members and limits the possibility for Member States to restrict residence within their territory of nationals of other Member States.
7. Article 7(1) and (2) of Directive 2004/38, under the heading ‘Right of residence for more than three months’, provides:
‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training;
– and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’
8. Article 16 of Directive 2004/38, which is headed ‘General rule for Union citizens and their family members’, states as follows:
‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’
B – United Kingdom law
9. Directive 2004/38 was transposed in the United Kingdom by the Immigration (European Economic Area) Regulations 2006, as amended by the Immigration (European Economic Area) (Amendment) Regulations 2009 (hereafter ‘the immigration regulations’).
10. Under Article 15(1)(b) of the immigration regulations, the right of permanent residence is acquired by family members of a Union citizen who are not nationals of a Member State but who have resided in the United Kingdom with that citizen for a continuous period of five years.
11. Article 18(2) of the immigration regulations states that the Secretary of State for the Home Department (‘Secretary of State’) must issue a permanent residence card within the six months following the application by the person concerned and the submission of proof that the person has such a right.
12. Article 21 of the immigration regulations is intended to implement Article 28 of Directive 2004/38.
II – The facts in the main proceedings and the questions referred for a preliminary ruling
13. Mr Onuekwere is a Nigerian national. He states that he arrived in the United Kingdom in 1999. On 2 December 1999, he married an Irish national with whom he had two children. On 5 September 2000, Mr Onuekwere obtained a residence permit granting him a right to remain in the United Kingdom as the spouse of a Union citizen. That permit expired on 5 September 2005.
14. On 26 June 2000, Mr Onuekwere was sentenced to nine months in prison, suspended for two years, for having sexual intercourse in a hospital in which he was employed with a patient who suffered from a mental illness. The referring court states that he completed the period of suspension without imprisonment.
15. On 30 September 2003, at a border control between France and the United Kingdom, Mr Onuekwere was arrested on the ground that he had assisted a passenger travelling in his car with him to enter the United Kingdom illegally. Mr Onuekwere was bailed to appear at court but failed to do so, resulting in his being convicted on 18 August 2004. On 16 September 2004, Mr Onuekwere was sentenced to prison for two years and six months in respect of the facts dating back to 30 September 2003.
16. He was freed on 16 November 2005 and, by decision of 18 November 2005, the Secretary of State ordered that he be deported. Mr Onuekwere appealed against that decision, his appeal being upheld by decision of 1 November 2006 on the ground that he was the spouse of a Union citizen exercising her rights conferred by the EC Treaty.
17. On 26 December 2007, at a police road check, Mr Onuekwere was arrested for being in unlawful possession of false papers. He was convicted and sentenced for that offence, on 8 May 2008, to two years and three months’ imprisonment. The referring court explains that, by the day of his sentence, he had already spent 109 days in detention.
18. On 6 February 2009, the day he left prison, the Secretary of State adopted a second decision to deport him. By judgment of 29 June 2010, the Upper Tribunal (Immigration and Asylum Chamber), London, allowed Mr Onuekwere’s appeal. That court held that, although his spouse had exercised Treaty rights between April 1998 and May 2004, thus acquiring a right of permanent residence, the same did not apply to Mr Onuekwere, since his imprisonment from 16 September 2004 had prevented him from acquiring such a right. However, that court held that he could not be deported, since his personal circumstances outweighed the public interest in removing him on public policy grounds.
19. Following that decision, Mr Onuekwere applied for a permanent residence card. By decision of 24 September 2010, the Secretary of State rejected that application. An appeal against that decision to the First-tier Tribunal (Immigration and Asylum Chamber) was brought and the appeal was heard on 20 June 2011. That court held that Mr Onuekwere was entitled to a residence card but that he did not enjoy a right of permanent residence based on five years’ continuous residence.
20. Mr Onuekwere then appealed against that judgment to the referring court, considering that, in the light of the judgment of the Court in Case C-145/09 Tsakouridis, (3) imprisonment had not interrupted continuity of residence but was merely a factor to be taken into account.
21. As stated by the referring court, the period of approximately four years and ten months between 2 December 1999, the date of Mr Onuekwere’s marriage with a Union citizen, and 16 September 2004, when he was imprisoned, falls just short of the period of five years required for the purposes of obtaining the right of permanent residence under Article 16 of Directive 2004/38.
22. The Upper Tribunal (Immigration and Asylum Chamber), London, being in doubt as to the correct interpretation of that provision, decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘(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 Directive 2004/38?
(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 five years needed to establish a permanent right of residence under Directive 2004/38?’
III – Analysis
23. By its first question, the referring court asks the Court of Justice, in essence, whether Article 16 of Directive 2004/38 must be interpreted as meaning that a period of imprisonment can be qualified as ‘legal residence’ and, thus, be taken into account in calculating the period of five years required for the purposes of the acquisition of a right of permanent residence.
24. If such a period could not be regarded as ‘legal residence’, the referring court seeks to ascertain, by its second question, whether that provision must be interpreted as meaning that periods of legal residence before and after imprisonment can be aggregated for the purposes of calculating that period of five years.
A – The concept of 'legal residence' within the meaning of Article 16 of Directive 2004/38
25. As a preliminary point I would like at the outset to state the reasons why I believe that the judgment in Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri, (4) and that in Tsakouridis, to which reference was made inter alia by the referring court and Mr Onuekwere, are not relevant in the present case.
26. In Orfanopoulos and Oliveri, one of the questions was, in essence, whether Mr Orfanopoulos had retained his status of worker within the meaning of European Union law notwithstanding his imprisonment, the retention of the right of residence being conditional on the status of worker or, as the case may be, of a person seeking employment. The issue was thus not, in that case, to determine the effect of imprisonment on the continuity of legal residence for the purposes of acquiring a right of permanent residence – a right which, at the time when that judgment was delivered, the citizen of the Union did not enjoy – but to determine the effect of such imprisonment on the retention of the status of worker for the purposes of maintenance of the right of residence.
27. With regard to Tsakouridis, the question was whether absences from the territory of the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, that is to say in the course of the ten years preceding the decision to expel the person concerned, preclude that person from enjoying enhanced protection. Responding to that question, the Court stated merely that the fact that the person in question has been the subject of a forced return to the host Member State in order to serve a term of imprisonment there and the time spent in prison may, together with the factors listed in paragraph 33 of that judgment, be taken into account as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken. (5)
28. The Court was therefore asked, in that case, not to explain the concept of legal residence – a concept which is, furthermore, absent from the wording of Article 28 – but precisely to interpret the system of protection against expulsion established by that provision. The conditions for the grant and loss of the right of permanent residence must be distinguished from those relating to the loss of enhanced protection. (6) Thus, Orfanopoulos and Oliveri and Tsakouridis are not, in my opinion, relevant to the present case.
29. By contrast, other recent judgments of the Court of Justice provide some indications as to how the first question might be answered.
30. In Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja, (7) the Court had the opportunity, for the first time, to define the concept of ‘legal residence’ within the meaning of Article 16(1) of Directive 2004/38. Thus that concept, implied by the wording ‘have resided legally’, which appears in that provision, should be construed as meaning a period of residence which complies with the conditions laid down in that directive, in particular those set out in Article 7(1) of the directive. (8)
31. Furthermore, in Case C-529/11 Alarape and Tijani, (9) the Court held that, if Article 16(2) of Directive 2004/38 is to apply, it is clear that 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 that, second, those family members have resided with him for the period in question.
32. With regard to the acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State, that obligation to reside with that citizen in the host 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. (10) It should be recalled that, according to that provision, the right of residence provided for Union citizens in accordance with Article 7(1) of that directive is to extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in Article 7(1) (a), (b) or (c) of the directive.
33. Thus, it follows that, for the purposes of the acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State, under Article 16(2) of Directive 2004/38, 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. (11)
34. The following conclusion can be drawn from that case-law. The right of permanent residence of a national of a third State who is a member of the family of a Union citizen is not an autonomous right but a right derived from the right of permanent residence of that citizen. Equally, the right of residence of such a national stems directly from the right of residence of that citzen obtained in accordance with Article 7(1) of Directive 2004/38.
35. According to Mr Onuekwere, it is of little consequence that, during the five years of legal residence required under Article 16(2) of that directive, he was in prison. He considers that, despite the periods of residence spent in prison, in so far as his wife, a Union citizen, fulfils the conditions of Article 7(1) of that directive and enjoys a right of permanent residence, he enjoys such a right himself. In addition, concerning the condition of residence with the Union citizen contained in Article 16(2) of Directive 2004/38 in the expression ‘… have legally resided with the Union citizen in the host Member State’, Mr M. Onuekwere considers that the citizen exercising his right of free movement and residence and the spouse, who is member of that citizen’s family, are not under an obligation to cohabit, meaning that it is possible to regard the periods of residence in prison as residence with the Union citizen.
36. I cannot agree.
37. First, with regard to the expression ‘with the citizen of the European Union’ contained in Article 16(2) of Directive 2004/38, the Court has held, since the 1980s, that cohabitation of a migrant worker with a national of a third State who is a member of that worker’s family does not necessarily require that the family member must live permanently with the worker, but only that the accommodation which the worker has available must be such as may be considered normal for the purpose of accommodating his family. A requirement that the family must live under the same roof permanently cannot therefore be implied. (12) In the case at issue, the person concerned was a national of a third country who lived separately from her spouse, a migrant worker, and wanted to obtain a right of residence under Article 10 of Regulation (EEC) No 1612/68. (13) The Court thus held that the members of the family of a migrant worker, within the meaning of that provision, are not necessarily required to live permanently with him in order to qualify for a right of residence under that provision.
38. Such an interpretation also holds good for instruments of European Union law which postdate Regulation No 1612/68 – in the present case for Directive 2004/38. I am of the opinion that the expression ‘with the Union citizen’ contained in Article 16(2) of that directive must not be interpreted literally, and therefore strictly, unless it is to remove certain legitimate beneficiaries from the rights which that directive would normally confer on them or, also, infringe the right to respect for private and family life which everyone enjoys under Article 7 of the Charter of Fundamental Rights of the European Union.
39. There may be situations in which, by force of circumstances, the citizen of the Union and the national of a third State who is a member of his family cannot live permanently under the same roof. For example, the citizen of the Union may have to live during the week or even for a prolonged period of time in a region other than that in which his spouse who is a national of a third State lives. That is particularly true in today’s world in which it is common for people to have to change jobs and to move from place to place. Equally, a member of the family of a Union citizen may be a student and have to study in a town other than that in which the family keeps its main home.
40. The Court has also already held that the fact that the children of a Union citizen do not live permanently with that citizen does not affect the rights which they derive from Articles 10 and 12 of Regulation No 1612/68. In providing that a member of a migrant worker’s family has the right to install himself with the worker, Article 10 of that regulation does not require that the member of the family in question live permanently with the worker, but, as is clear from Article 10(3) of the regulation, only that the accommodation which the worker has available must be such as may be considered normal for the purpose of accommodating his family. (14)
41. The obligation, contained in Article 16(2) of Directive 2004/38, to reside with the Union citizen for a continuous period of five years does not therefore mean that cohabitation under the same roof must be permanent.
42. None the less, as we shall see, I do not adhere to the view that periods of residence spent in prison can be regarded as periods of legal residence within the meaning of that provision and thus taken into account in the calculation of the period of five years required by that provision for the purposes of the acquisition of the right of permanent residence.
43. The purpose of Directive 2004/38 should be recalled. As stated in my Opinion in Ziolkowski and Szeja, recitals 3 and 17 in the preamble to that directive make clear that its objective is to achieve a system which focuses on strengthening social cohesion, in which the right of permanent residence is a key factor, being an element of Union citizenship, which should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. Thus, the Union legislature intends Union citizens who fulfil the conditions for the acquisition of that right of permanent residence to have in almost all respects equal treatment with nationals of the Member States. (15)
44. The right of permanent residence thus goes beyond the mere right to reside and move within the territory of the European Union. It can create, for Union citizens, a feeling of being fully part of the society of the host Member State, inter alia by removing all the administrative constraints which may exist for non-nationals. (16) Once obtained, the right of permanent residence is not subject to any of the conditions in Chapter III of Directive 2004/38, including those set out in Article 7 of the directive.
45. It is true that the present case concerns a national of a third State who is a member of the family of a Union citizen. No less strong an impact is however intended in their regard. First, the legislature sought to preserve family unity, which is intrinsically linked to the right to protection of family life, by allowing family reunification, thus facilitating the free movement of Union citizens, those citizens no longer being deterred from moving on the ground that they would lose contact with their family. (17) Second, by also granting a right of permanent residence to nationals of third States who are members of the family of a Union citizen, the European Union legislature aims, furthermore, to maintain that family unity by ensuring that those nationals also feel part of the society of their host Member State.
46. In reality, the grant of such a right of permanent residence virtually amounts, for third country nationals who are members of the family of a Union citizen, to treating them on the same basis as such a citizen where they have resided for at least five years with that citizen in the territory of the host Member State. For the European Union legislature, a sufficiently long period of residence in the territory of the host Member State demonstrates the close links developed by the Union citizen or the member of his family with that State and therefore their genuine integration.
47. The system set up by Directive 2004/38 and more specifically the creation of a right of permanent residence is therefore based on the idea that genuine integration must, in a sense, be rewarded, or at least that it must have an effect of strengthening the feeling of belonging to the society of the host Member State.
48. Therefore, if such a system is based on genuine integration of the person concerned, how can a person who has been imprisoned on one or more occasions possibly be allowed to enjoy a right of permanent residence? Does integration within the society of the host Member State not first require the person who seeks to profit from it to respect the laws and values of that society?
49. In my view, that must be the case. As the Court stated in its judgment in Case C‑325/09 Dias, (18) and as noted in my Opinion in Case C-348/09 I., (19) the integration which lies behind 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 time factors but also on qualitative elements, relating to the level of integration in the host Member State. (20)
50. Periods of residence in prison of course make clear that the person concerned is integrated to only a limited extent. That is even more true where, as in the case in the main proceedings, that person is a multiple recidivist. Criminal conduct in my opinion clearly shows that the person concerned has no desire to integrate in the society of the host Member State.
51. Taken to its logical conclusion, Mr Onuekwere’s reasoning can only be regarded as plainly contradicting the spirit of Directive 2004/38 and the purpose pursued by it. Mr Onuekwere’s argument amounts ultimately to the thesis that, the heavier the penalty and thus the longer the period of imprisonment, the more integrated the person concerned becomes in the society of the host Member State. Thus, for example, a national of a third State, who is a member of the family of a Union citizen, sentenced to 20 years in prison for murder, could claim a right of permanent residence at the end of 5 years in prison in so far as his spouse, who satisfies the conditions laid down in Article 7(1) of that directive, has herself acquired a right of permanent residence.
52. Apart from being ridiculous, such reasoning is contrary to the goal of that directive which is, inter alia, to promote social cohesion by establishing a permanent right of residence and to strengthen the feeling of being a citizen of the European Union. Need it be recalled, in that regard, that citizenship is for the citizen a guarantee of belonging to a political community under the rule of law?
53. Finally, since reference has been made to my Opinion in Tsakouridis, (21) Mr Onuekwere considering that it would be incompatible with the objective of integration and the function of rehabilitation pursued by the sentence not to take into account periods of residence spent in prison, it should be observed as follows.
54. It is clear that every sentence must, in accordance with the fundamental principles of the law on sanctions, comprise a rehabilitative element to be achieved by appropriate means of implementation. Nevertheless, if a sentence has been imposed, it is precisely because societal values as expressed in the criminal law have been disregarded by the offender. And while rehabilitation must take its proper place, that is exactly because either there was no integration in society, thus explaining the commission of the offence, or because such integration was expunged by commission of the offence.
55. Besides rehabilitation, the sentence also serves the essential purpose of retribution, which aims to make the offender pay for his crime and is proportionate to the gravity of the offence, expressed here by the penalty of imprisonment. These functions cannot operate to negate each other. The rehabilitative function cannot result in a situation where a period spent atoning for the crime committed confers on the convicted person a right the acquisition of which requires recognition and acceptance of social values which he specifically disregarded by committing his criminal act.
56. That is the reason for which, in addition, I am of the opinion that, even in the context of reduced sentencing which may find expression, for example, in house arrest or in a part-release scheme obliging the prisoner to return to prison in the evening, it is not possible to consider that the person concerned is residing legally within the meaning of Article 16(2) of Directive 2004/38.
57. For all the above reasons, I take the view that that provision must be interpreted as meaning that 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 five years required for the purposes of the acquisition of the right of permanent residence.
B – Aggregation of the periods of legal residence for the purposes of the calculation of the period of five years
58. The second question asked by the referring Court is intrinsically connected to the first. Were the first question to be answered in the negative, the Upper Tribunal (Immigration and Asylum Chamber), London, seeks to ascertain, in essence, whether Article 16(2) of Directive 2004/38 must be interpreted as meaning that the periods of residence before and after imprisonment may be aggregated for the purposes of calculating the required period of five years.
59. In other words, the question is whether imprisonment interrupts continuity of legal residence, meaning that the periods of legal residence completed before and after that imprisonment cannot therefore be counted.
60. In the opinion of the German Government and the Commission, certain periods can be taken into account. According to the German Government, Article 16(3) of Directive 2004/38 must be applied by analogy. Thus, a number of periods of imprisonment exceeding in total six months per year or a single period of imprisonment of more than twelve months would interrupt the continuity of legal residence required for the purposes of the acquisition of the right of permanent residence. Equally, periods of imprisonment of lesser duration would also interrupt the continuity of that residence where the transgression which earned imprisonment manifestly demonstrated unwillingness on the part of the person concerned to integrate in the society of the host Member State or to respect its values.
61. The Commission considers that the taking into account of certain periods spent in prison depends, inter alia, on the level of integration of the person before imprisonment, the duration of the detention, the gravity of the offence of which he was convicted and whether or not there has been recidivism. The Commission therefore takes the view that a proportionality assessment must be carried out in this respect.
62. I do not share the view either of the German Government or of the Commission.
63. As we have seen, Article 16(2) of Directive 2004/38 lays down a condition of continuity of residence, by requiring that a family member in Mr Onuekwere’s situation have legally resided for a continuous period of five years with the Union citizen. That provision must be read in the light of the objectives of that directive, as expressed inter alia in recitals 17 and 18 in its preamble, that is to say to promote social cohesion and facilitate the integration of the new arrivals in the society of the host Member State by establishing good social, family and working relationships in that State. In addition, the travaux préparatoires concerning Directive 2004/38 emphasise the importance of creating a strong link of integration with the host Member State as a prerequisite for obtaining the right of permanent residence. The condition laid down in Article 16(2) of that directive therefore expresses a presumption that a continuous period of five years has enabled the individual concerned to develop strong links of integration with the society of the host Member State.
64. Thus, in the light of the observations I made concerning the first question, if periods of legal residence before and after imprisonment could be taken into account in calculating the required period of five years, that would in my opinion amount, in reality, to denying that the person concerned was not integrated and would greatly diminish the effectiveness sought by Article 16(2) of Directive 2004/38. Imprisonment imposed after a transgression of the societal norms of the host Member State precisely goes to show that the person concerned was not integrated in that society. Again, that is all the more obvious where the person concerned is a recidivist.
65. The addition of periods of residence occurring earlier and later than the serving of the sentence imposed is therefore inconsistent with the goal pursued by that directive. To adopt that approach would distort the meaning of ‘continuous period of five years’ in Article 16(2) of the directive and ignore the requirement that the period of integration be continuous.
66. In my opinion, the wording of Article 16(3) of the directive does not alter this analysis in any respect. That provision provides a number of examples of temporary absences which do not affect the continuity of legal residence. That is the case for an absence not exceeding a total of six months a year or for absences of a longer duration for compulsory military service, an absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
67. Reading that provision, I note first of all that the absences referred to are absences from the territory of the host Member State. It therefore seems difficult to place periods of residence spent in prison in the same category as absences from the territory of that State.
68. Second, those absences do not arise as a result of criminal behaviour affecting the level of integration of the person concerned. They constitute, inter alia, events in the life of a Union citizen or of a member of his family who is a national of a third State which oblige them temporarily to leave the territory of the host Member State. That is the case, in particular, with regard to military obligations, work obligations or even a serious illness which necessitates care for which other States’ structures are better suited. A Union citizen or member of his family from a third State may also wish temporarily to leave the host Member State in order to be close to a friend or relative in a difficult situation. The willingness to integrate in the society of that State and to develop strong links with it is however not thereby diminished.
69. I am of the view that it is not therefore possible to apply Article 16(3) of Directive 2004/38 to the present case, contrary to what is suggested by the German Government.
70. The Commission proposes that the national judge should, in certain cases, be free to mitigate the rigour of the rule according to which periods of legal residence before and after imprisonment are not taken into account in calculating the period. It would thus be in keeping with the principle of proportionality to limit the consequences for individuals of a particularly short sentence imposed in respect of a relatively minor offence. The application of the principle of proportionality would therefore preclude, in certain cases, the interruption of the period of five years for the purposes of acquisition of the right of permanent residence.
71. In my opinion, it is not possible to apply such a solution. First, how would it be possible to reconcile it with the fact that, in a Union of 28 countries, criminal law and therefore the classification of offences diverge. Certain offences may not be of equal gravity or be subject to the same penalties in all Member States. Furthermore, precise criteria would be needed to ensure that the offender knew exactly what to expect. The uncertainty which would be generated by the application of the principle of proportionality as proposed by the Commission would call into question the principle of legality.
72. Contrary to what was argued by the Commission at the hearing, I am of the view that it is not for the Court but precisely for the European Union legislature to define the criteria on the basis of which and the thresholds within which it should be considered that a period of residence in prison does not interrupt the period required under Article 16(2) of Directive 2004/38.
73. In my view, only a period of residence in prison in the context of pre-trial detention followed by a decision not to proceed to judgment or by an acquittal could be taken into account in calculating the period of five years required for the purposes of the acquisition of the right of permanent residence. In that specific case, pre-trial detention is not the execution of a sentence following conviction for an offence. It involves placing the person concerned in custody for all or part of the investigation, during which the presumption of innocence applies to him. In so far as that person is subject, thereafter, to a decision not to proceed to judgment or is acquitted, the public authorities consider that there is no transgression of societal norms or values, the person concerned never having ceased to be innocent of the act of which he was accused. Therefore, he cannot be accused of criminal conduct indicating a lack of willingness to integrate in the society of the host Member State.
74. In the light of the above considerations, it is my opinion that Article 16(2) of Directive 2004/38 must be interpreted as meaning that periods of legal residence before and after imprisonment cannot be aggregated for the purposes of calculating the period of five years, because imprisonment interrupts that period.
IV – Conclusion
75. In the light of the foregoing considerations, I propose that the Court give the following answer to the Upper Tribunal (Immigration and Asylum Chamber), London:
Article 16(2) of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that:
– 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 five years required for the purposes of acquisition of the right of permanent residence; and
– periods of legal residence before and after imprisonment cannot be aggregated for the purposes of calculating that period of five years because imprisonment interrupts that period.