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Rules on early permanent residence rights for retirees confirmed by Court of Justice
Credit: Cédric on Flickr

Rules on early permanent residence rights for retirees confirmed by Court of Justice

In Case C-32/19 AT v Pensionsversicherungsanstalt the Court of Justice of the European Union was asked to review Article 17(1)(a) of the Citizens’ Rights Directive. This provides an exception to the usual requirement of five years’ continuous residence before EU migrants are entitled to permanent residence in the country they have moved to. 

The exception applies to those who reach retirement age. Article 17(1)(a) states that permanent residence must be granted to:

workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years [emphasis added].

This case concerned a Romanian man, AT, who had moved to Austria. He did not meet either of those conditions — at least not at the same moment in time.

When AT reached retirement age he had been working in Austria for more than 12 months but had not resided there for three years. He then went back to work again and by the time he decided to retire he had been living in Austria for three years, but had only worked for ten straight months. AT might understandably have been aggrieved by the decision of the Austrian courts that he had not acquired a right of permanent residence despite fulfilling the spirit of the rules.

Any hope that the Court of Justice might bend the rules to accommodate his case was disappointed. The court dispensed with the need for an Opinion from the Advocate General and backed the Austrian authorities in a relatively short judgment.

The court stated that since Article 17 is a derogation from the usual five-year rule it must be interpreted strictly. In light of that approach, the court unsurprisingly concluded that Article 17(1)(a) means exactly what is says:

It follows that, for the purpose of acquiring a right of permanent residence in the host Member State, those workers must satisfy the conditions set out in Article 17(1)(a) of Directive 2004/38 that they must have been working in the host Member State for at least the preceding 12 months and must have resided in that Member State continuously for more than 3 years. If that provision were to be interpreted in such a way that the mere fact that a worker, at the time he or she stops working, has reached the age laid down by the law of the host Member State for entitlement to an old age pension is sufficient to be entitled to a right of permanent residence in that Member State, regardless of any period of residence in that Member State before that person stops working, the gradual system provided for by that directive would be misconstrued.

A disappointing result for the man concerned, although little criticism can be made of how the court approached the interpretation of the directive. More than anything else, this case illustrates that harsh decisions resulting from rigid application of immigration law are not just a problem in the UK.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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