The Court of Appeal has held that there is no free standing right to reside under Article 18 EC. It held that the permanent right of residence is subject to the limitations and conditions contained in the measures adopted to give the EC Treaty effect.
In its review decision the local authority decided that the Appellant was owed a limited housing duty by virtue of the fact that her niece (upon whom she relied for priority need) was not a qualified person under regulations 4 and 6 of the Immigration (European Economic Area) Regulations 2006. The niece did not meet the requirements for being a student because she did not have comprehensive sickness insurance and had not made a declaration that she had sufficient means.
On appeal the Appellant sought to rely on Article 18 of the EC Treaty (now Article 21 TEU) in establishing a free standing permanent right of residence. Article 18 provides for a permanent right of residence for an EU national who has 'resided legally' in another member state for a period of five years.
Sir Anthony May President of the Queen's Bench Division said that the appellant's niece did not have a permanent right to reside in the UK under Article 18 EC in circumstances where the limitations and conditions laid down by Directive 2004/28 and the 2006 Regulations were not met.
In addition, the Court held that there was no Baumbast lacuna.
At paragraph 18 May LJ said:
'It is, in our view plain that residing 'legally' in Article 16 of the Directive means 'in compliance with the conditions laid down in this Directive'...The lawful residence contemplated by Article 16 of the Directive is residence which complies with Community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality'
The Court considered the cases of Abdirahman v SSWP  1 WLR 254, Baumbast v SSHD  ECR 1-701, McCarthy v SSHD  EWCA Civ 641, Trojani v Centre Public d'aide social de Bruxelles  ALL ER (EC) 1065 and R (Bidar) v Ealing LBC  QB 812 amongst others.
Kelvin Rutledge and Kuljit Bhogal were instructed by Hackney LBC.
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