Lekpo-Bozua v London Borough of Hackney & Ors

For the purpose of Article 16 of Directive 2004/38/EC, a Union citizen has resided “legally” only when the residence complied with the conditions laid down by the Directive. Mere lawful presence, or a failure by the host state to remove the person, cannot mature into a permanent right of residence.

Article 18(1) EC provides no free-standing route around those conditions. A student who lacks comprehensive sickness insurance and sufficient resources has no Article 7 right of residence and cannot acquire permanent residence through five years of tolerated presence. A housing applicant cannot derive priority need, or the full housing duty, from a dependent child who consequently remains subject to immigration control.

The appellant, a British citizen, became homeless through domestic violence while living with her dependent French niece. Hackney accepted that the appellant was homeless and eligible for assistance, but decided that the niece had no qualifying right of residence and could not support entitlement to the full housing duty under Part VII of the Housing Act 1996.

HH Judge John Mitchell dismissed the appellant’s statutory appeal in the Clerkenwell and Shoreditch County Court. On the second appeal, the central question was whether the niece’s residence for more than five years, without enforcement action against her, conferred permanent residence under Article 16 of Directive 2004/38/EC or a free-standing right under Article 18(1) EC, despite her failure to satisfy the Directive’s self-sufficiency conditions.

1. Appeal dismissed. Article 16 of Directive 2004/38/EC grants permanent residence only after five years’ residence which was “legal” in the sense of complying with the conditions laid down by the Directive. That construction follows recital 17 and the Directive’s scheme. Domestic-lawful or tolerated presence does not alone constitute legal residence under Union law.
2. The niece did not satisfy Article 7. She lacked comprehensive sickness insurance and sufficient resources to avoid becoming a burden on the United Kingdom’s social assistance system. Article 14.2 made continued enjoyment of the Article 7 right conditional upon continued compliance. She therefore had no qualifying right of residence after her initial three months.
3. The United Kingdom’s failure to remove her did not waive the Directive’s conditions or cause her residence to mature into a permanent right after five years. She remained present on tolerance, subject to immigration control, and without a right to remain.
4. Article 18(1) EC did not create a free-standing right capable of overriding the limitations imposed by measures adopted to give that provision effect. Resort to Article 18 led back to the conditions in the Directive. There was no lacuna of the kind addressed in Baumbast because the self-sufficiency requirements were an express and central feature of the legislative policy.
5. The statement in Kaczmarek that the Directive provided permanent residence after five years’ lawful presence was unnecessary to that decision and, if read literally, incorrect. The court instead agreed with McCarthy that “resided legally” means residence complying with the Directive.
6. Accordingly, the niece could not establish the appellant’s priority need under the former version of the Housing Act 1996. Under the amended legislation she would be a restricted person attracting only the duty in section 193(7AA). Hackney owed no full housing duty under either version.

1. Court of Appeal (Civil Division): The second appeal was dismissed. The court upheld the conclusion that the appellant’s niece had not acquired a permanent right of residence and that Hackney owed no full housing duty: [2010] EWCA Civ 909.
2. Clerkenwell and Shoreditch County Court: HH Judge John Mitchell dismissed the appellant’s appeal against Hackney’s review decision on 9 October 2009.
3. London Borough of Hackney: The reviewing officer decided on 18 June 2009 that the niece was a restricted person and that Hackney’s duty was limited to section 193(7AA) of the Housing Act 1996. The court noted that the amended provision did not apply retrospectively, although that error had favoured the appellant and was immaterial to the appeal.