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Two Big Euro Cases

Two Big Euro Cases

Despite having already signed off for Christmas, I’ve been sitting waiting all morning to get on at Hatton Cross and decided to catch up on the two Big Euro Cases from this week. Both are from the Court of Justice of the European Union.

The first is NS v United Kingdom (C-411/10), and you would have had to have been living in a bunker not to have caught some of the very extensive press coverage of the judgment. This case perhaps inevitably follows from the Big Fat Greek Test Case in the other major Euro court, the European Court of Human Rights. In NS the court held that where the asylum system has broken down in a Member State then Dublin II removals should not occur. The outcome is no surprise after the Advocate General Opinion. Removals to Greece under Dublin II are now off the agenda for the foreseeable future. It will be interesting to see what comes of challenges to Dublin II removals to other countries, including Italy and Cyprus.

The other case is a linked one, Ziolkowski and Szeja v Germany (C-424/10, C-425/10). This concerns the qualifying nature of residence that counts towards permanent residence for the purposes of the Citizens Directive. The court reaches two separate conclusions.

Firstly, legal residence under national laws not in compliance with the requirements of the Directive does not contribute to the acquisition of the right of permanent residence. This might include residence as a visitor, for example.

Secondly, though, periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union does contribute to the acquisition of the right of permanent residence, provided those periods were completed in compliance with the requirements of the Directive. This could be residence as a student or a work permit holder of some sort, for example.

The outcome is a disappointing one for those who thought the ‘legal residence’ requirement of the Directive was plain and simple and not tied to the Directive, but at least we now have clarity.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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