Neutral Citation Number: [2011] EWCA Civ 499
Case No:  C5/2010/0778, C5/2010/0779 & C5/2010/0780

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Senior Immigration Judge Freeman
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/04/2011
Before :

LORD JUSTICE MAURICE KAY
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE THOMAS
and
LORD JUSTICE ETHERTON
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Between :

	Franklin M C Okafor & Ors 	Appellants	
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	Secretary of State for the Home Department	Respondent	

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Mr Ramby De Mello and Mr Abid Mahmood (instructed by Messrs Aman) for the Appellants
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent

Hearing date: 17 January 2010
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Judgment

Lord Justice Thomas: 
1.	This appeal raises an issue as to the circumstances in which family members of an EU citizen are entitled to permanent residence in another Member State where the EU citizen dies before acquiring the right of permanent residence.
The background
The nationality of the appellants and their initial right to residence in the UK
2.	In 1994 the first appellant, a citizen of Nigeria (to whom I shall refer as the father), married a citizen of the Netherlands (the mother).  They had two children, the second appellant, born in 1995 and the third appellant, born in 2000.  Each was born in Germany; they are both citizens of the European Union.  Although there is evidence that the whole family first came to the UK in 2001, it was common ground that it was only on 7 June 2003 that the mother, the father and the children were given permission to reside under the terms of Directive 2004/38/EC (often referred to as the Citizenship Directive) which has been given effect in the United Kingdom through the Immigration (European Economic Area) Regulations 2006.  As these Regulations extend the rights under the Directive to citizens of Norway, Lichtenstein, Iceland and Switzerland, EU citizens and citizens of the other states are defined as EEA nationals.  As it was common ground that the UK Regulations had to be construed so as to be compatible with the Directive and as the argument on both sides was conducted by reference to the Directive, I shall refer principally to the Directive.
3.	The right of residence was given to the mother as a citizen of the Netherlands, under Article 7(1) which provides as follows:
“1.	All Union citizens shall have the right of residence on the territory of another Member State for a period 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).”
4.	The right of residence for the father and the two children was granted by Article 7(2) which provides as follows:
“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).”
5.	Under Article 10 of the Directive, the right of residence of family members of a Union citizen who are not nationals of the Member State is to be evidenced by the issuing of a document called “Residence Card for Family Member of the Union Citizen”.  Under Article 11 that Residence Card is to be valid for five years from the date of issue.  The UK does not issue Residence Cards, but the right of residence is evidenced by an endorsement in the passport.  The passport of the father was endorsed accordingly and that of the mother endorsed to cover her position and that of the children.
6.	There was some evidence before the Immigration Judge that the mother was employed in 2003, but it was common ground that before her death in 2007, she had not fulfilled any of the conditions in Article 7(1).  She was not therefore a “qualified person” within the meaning of Regulation 6 of the UK Regulations which transposed the Directive.  It is not necessary therefore to set out any more detail in respect of her position.
Their position after the death of the mother
7.	After the mother’s death, the father and the children remained in the United Kingdom; the period of five years for which their residence permit had been granted expired, in accordance with its terms, on 26 June 2008.
8.	Specific provision for rights of residence of the father and the children after the mother’s death is made by Article 12.  Article 12(1) sets out the position of the children as family members who are nationals of a Member State.
“Without prejudice to the second subparagraph, the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).”
Again there was no dispute that the children did not meet any of the qualifying conditions of Article 7(1).
9.	The position of the father as a non-national of a Member State is covered by paragraph 2 of the Article which provides as follows:
“Without prejudice to the second subparagraph, the Union citizen’s death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen’s death.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or 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 and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements.  “Sufficient resources” shall be defined as in Article 8(4).
Such family members shall retain their right of residence exclusively on a personal basis.”
There was some argument as to whether the father could satisfy the condition in respect of resources to which I return at paragraph 17.
10.	As is apparent from the wording of Article 12(1) and Article 12(2), both refer to the acquisition of the “right of permanent residence”.  Article 12(3) makes a further provision which enables children and the parent who has actual custody of the children to reside in the host Member State if they are at an educational establishment for the purpose of study until the completion of the studies.  Article 12(3) is in the following terms:
“The Union citizen’s departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.”
11.	The evidence established that both children were and are at school and that therefore under Article 12(3) the children and their father (as the person with custody after the death of the mother) are entitled to retain the right of residence until the completion of the studies.  However, as I explain at paragraph 18, the argument advanced by Mr De Mello (who appeared for the father and the children) went further; it was contended that Article 12(3) also provided for the right of permanent residence in certain circumstances.
The application for permanent residence
12.	In January 2009, the father applied for a permanent residence card on the basis that he was a family member of a Union citizen who had died and on the basis that he had resided in the UK for a continuous period of five years.  The children applied on a similar basis.  The application based on residence for a continuous period of five years was founded on Article 16 of the Regulation 2004/38/EC, the children relying on Article 16(1) and the father on Article 16(2).  These provided 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.”
This Article had been transposed by Regulation 15 of the UK Regulations.  Regulation 15(1) (a) and (b) of those Regulations provide as follows:
“(1)	The following persons shall acquire the right to reside in the United Kingdom permanently –
(a)	an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b)	a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years.”
13.	The UKBA, on behalf of the Secretary of State, refused the application for a permanent residence card on the basis that neither the father nor the children satisfied the requirements of the UK Regulations under Regulation 15(1)(a) or (b) (the equivalent of Article 16 of the Directive). Nor did they qualify under Regulation 15(1)(e) of the UK Regulations (which with Regulation 10 gives effect to Article 12 of the Directive) which provides:
“(e) a person who was the family member of a worker or self employed person where-
(i) 	the worker or self-employed person has died;
(ii) 	the family member resided with him immediately before his death; and
(iii)	the worker or self employed person had resided continuously in the United Kingdom for at least two years immediately before his death or the death was the result of an accident at work or occupational disease.”  
14.	The father and children appealed.  Their appeal was dismissed by Immigration Judge Lawrence on 27 November 2009 on the basis that, at the time of her death, the mother did not satisfy the conditions for permanent residence.  On appeal from that determination Senior Immigration Judge Freeman dismissed the appeal on 10 February 2010 on the basis that the mother had not obtained a right to permanent residence at the time of her death.  No right was obtainable under Regulation 15(1)(a) or (b) (which as I have set out was the equivalent of Article 16) as none had resided in the United Kingdom in accordance with the Regulations.  On 15 March 2010 Judge Freeman, by then a judge of the Upper Tribunal, granted permission to appeal on the question of whether the issue of the “residence card” (by endorsement to the passport) created a right to permanent residence under Article 16 of the Directive (Regulation 17 of the UK Regulations) or merely recognised one that already existed.
15.	In his skeleton argument and at the oral hearing Mr De Mello broadened the scope of the appeal to advance the argument that the father and the children had a right to permanent residence under the Directive and the Regulations as interpreted in the light of the case law.  His argument was primarily based on Articles 12 and 16; the requirement in the UK Regulations for residence in accordance with the Regulations was not compatible with the Directive.
Was there a right under Article 12?
16.	Before turning to the argument advanced under Article 16, it is necessary first, in my view, to consider the scope of Article 12 for that is the Article, taking the structure of the Directive as a whole, which governs the specific position of the father and the children.
17.	As I have set out, the position of the children is governed by Article 12(1) as they are family members who are nationals of a Member State.  It is clear, and was not disputed by Mr De Mello (as I have set out at paragraph 8) that they could not claim a right to permanent residence under Article 12(1) as they could not meet the conditions of Article 7(1).  As to the position of the father, it was contended by Mr De Mello that, although he could not show he was a worker or self-employed person, no finding had been made by the Tribunal that he would become an unreasonable burden on the social assistance system.  As it is clear that it is for the father to show that he would satisfy the condition of not being a burden on the social assistance system, and as no case seems to have been advanced in this respect, I cannot accept this submission.
18.	I therefore turn to Mr De Mello’s submission under Article 12(3).  In contradistinction to Article 12(1) and Article 12(2), Article 12(3) refers to the right of residence, not the right of permanent residence.  It was nonetheless contended by Mr De Mello that the children and, through them, the father could obtain a right of permanent residence under Article 12(3) standing on its own.
19.	It was accepted by the Secretary of State that Article 12(3) gives a right of residence until the children who are at school have completed their studies. This was the view taken of the effect of Article 12 (3) by the European Court of Justice in Teixeira v London Borough of Lambeth [2010] 2 CMLR 50 – see paragraph 68.  The court relied on this Article in support of their decision in relation to Article 12 of Regulation 1612/68 on the free movement of workers in the community.  It decided that Article 12 of that Regulation gave a child, installed in the host Member State as a member of the family of a migrant worker, an independent right of residence to attend educational courses in the host state and also gave an ancillary right of residence to the carer of that child.  The rights under Article 12(3) of 2004/EC/38 and Article 12 of Regulation 1612/68 were not dependent on a child being self sufficient.
20.	However Article 12(3) does not in my view, confer, standing on its own, any right to permanent residence.  In the first place, as I have already pointed out, there is no reference to permanent residence in Article 12(3) only a right of residence.  The difference clearly points to a right distinct from permanent residence granted by Article 12(1) and Article 12(2).  Secondly Article 18 (which is entitled “Acquistion of the right of permanent residence by certain family members who are not nationals of a Member State”) refers only to Article 12(2) in relation to acquiring a right of permanent residence; it does not refer to Article 12(3).  Thirdly the scope of Article 12(3), if the argument of Mr De Mello was right, would be such that the provisions for the grant of permanent residence under Article 12(1) and Article 12(2) would be unnecessary.
21.	It seems to me, therefore, clear, on a construction of the Articles, that Article 12(3) cannot provide, standing on its own, a route for acquiring the right to permanent residence.  As an alternative, Mr De Mello contended that it provided a means of acquiring the right through Article 16; I will consider that when considering the scope of Article 16 to which I now turn.
Could a right be obtained under Article 16?
22.	It was Mr De Mello’s contention that both the father and the children could rely upon Article 16 which I have set out at paragraph 12 above.  That article provided that either Union citizens or family members who are non-nationals and had “resided legally” with Union citizens “for a continuous period of five years in the host Member State shall have the right of permanent residence there”.  His submission centred upon the meaning of the words “resided legally”.  It was clear, he submitted, from the case law, that legal residence meant residence in the host Member State on a basis that was not unlawful.  On the facts, in the case of each, their residence had not been unlawful and had, in fact, been permitted by:
i)	The stamp in their passport which was equivalent to a residence card granting under Article 11 a right of residence for five years.
ii)	The right, under Article 12(3) of the Directive, and the rights made clear under Article 12 of Regulation 1612/68, as confirmed by the decision of the European Court of Justice in Teixeira.
It did not matter that part of the period of five years was prior to the entry into force of the Regulation 2004/38/EC; this was accepted by the Secretary of State in the light of the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Case C-162/09). 
23.	Nor would it matter that the father and the children did not have rights derived from the Treaties or otherwise from the Directive.  The language of Article 16 made that clear, as it did not make the right under Article 16 dependent on meeting the conditions set out in Articles 7 or 12; legal residence was the sole pre-condition and that could be derived either from legal residence under EU law or under national law, that is to say residence that was not unlawful.
(i)	The submission on legal residence under EU law
24.	Mr De Mello first relied on cases to show that a national of the EU could rely on his residence card to establish legal residence under EU law.  The first case was Oulane v Minister voor Vreemdelingenzaken en Integratie Case C-215/03, [2005] QB 1055 where a French national resident in the Netherlands had brought a claim for illegal detention.  The court held that the right of a national of another Member State to reside in a host state depended on the rights under the Union Treaties and was not dependent upon production of documents; the documents were merely a means of proof (see paragraphs 17, 25, and 56).  It was contended by Mr De Mello that this case also showed that the right of residence derived from the Union Treaties and therefore a person in another state was there legally in the exercise of his Treaty rights.  I accept that the case assists on issues of proof of rights, as is clear from paragraphs 53 -56, but it goes no further.  It does not establish the broader proposition on which Mr De Mello relied.  Mr De Mello next relied on Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] CMLR 38 Case C-456/02.  The part of the decision said to be relevant was the court’s decision that whilst a Member State might make residence for a citizen of another Member State, who was not economically active, conditional on having sufficient resources, all Union citizens when lawfully resident were entitled to equal treatment (see paragraph 40).  Mr De Mello contended that this decision assisted his argument as it showed that a person could use a residence permit to prove lawful residence – see paragraphs 37 and 43.  As a residence permit can amount to proof of lawful residence, I do not see how the decision assists beyond the obvious point that it may be proof.  Whether it is proof depends upon the nature of the right given by the permit; the existence of the permit on its own is not sufficient.  It is necessary to consider what rights it evidences.  In my view therefore neither of these decisions assists on the establishment of the right to legal residence under EU law; they are concerned with proof of rights to legal residence that can otherwise be established.  
25.	Before turning to consider Mr De Mello’s principal arguments as to how rights were established under EU law under the terms of the Directive, I should mention that we were referred by Mr De Mello to cases concerning the operation of the European Arrest Warrant and the meaning of the term residence within that Framework Directive – Kozlowski Case C-66/08, [2009] 2 WLR 856, Wolzenburg Case C-123/08, [2010] 1 CMLR 33; I do not intend to refer to these cases at all, as they are of no assistance, as they are in a very different context.
(ii)	 The contentions made on the acquisition of the right to legal residence under Articles 11 and 12(3)
26.	Mr De Mello submitted that there were two ways in which the right of the father and the children to legal residence arose under the Directive.  The first, to which I have already referred, was under Article 12(3).  It is not necessary to refer to this at length, as it was accepted that whilst the children are in primary and secondary education, they have a right of residence in the UK, as does their father as the person having custody of them.  Such a right also derives, as I have set out, from the decision in Teixeira.
27.	The second way in which the right of legal residence was derived was from the residence card under Article 11 (as applied in the UK through the stamp in the passports) and the decision of the Secretary of State to take no action under Article 14 to revoke that right.  Article 14 provided as follows:
“1.	Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.
2.		Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.
In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled.  This verification shall not be carried out systematically.
3.		An expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State.
4.		By way of derogation from paragraphs 1 and 2 and without prejudice in the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:
(a)	the Union citizens are workers or self-employed persons, or
(b)	the Union citizens entered the territory of the host Member State in order to seek employment.  In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.”
28.	It was submitted by Mr De Mello that if the Secretary of State did not take action under Article 14 (which he could not take on a systematic basis), and persons were allowed to continue to reside, they must be here legally.  He submitted that paragraph 17 of the Preamble to the Directive could be relied upon as showing the importance of an uninterrupted period of legal residence as being regarded by the framers of the Directive as having a central role.  Paragraph 17 of the Preamble provided as follows:
“Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union.  A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.”
29.	As Article 16 provided that permanent residence simply arose from the requirement of legal residence for a period of five years, it did not matter that the father and the children could not show compliance with Article 12(1) or 12(2), as they could show by the routes to which I have referred legal residence for a period of five years.  
30.	It was submitted that reliance upon social security benefit by the father and the children did not make the residence illegal and that the State had taken steps to curtail their right:  Trojani at paragraph 45-46, Grzelczyk v Centre d’Aide Sociale d’Ottignies Louvain-La-Neuve [2001] 1 ECR 6193; C-184/99 at paragraphs 42-44; R (Bidar) v Ealing London Borough Council [2005] QB 812, C-209/03 at paragraphs 47-7. 
(iv)	Conclusion on rights under EU law
31.	I cannot accept Mr De Mello’s argument on the rights derived under EU law.  The only relevant rights are those that derive from Directive 2004/38/EC.  It is, in my view, important to have regard to the structure of the Directive.  It is clear that Chapter 3, which comprises Articles 6 to 15, deals with the acquisition of rights of residence which form the basis for the right of permanent residence.  Under Article 6 there is a right of residence for up to three months which can be extended to a period longer than three months if the conditions to which I have referred are satisfied.  Chapter 4, which encompasses Articles 16 to 21, deals with the right of permanent residence.  It is, in my view, clear from the scheme of the Directive that the rights of permanent residence are acquired through the rights of residence conferred through Chapter 3.
32.	As to the first route relied upon by Mr De Mello, it is necessary to consider Article 12(3) and the right to education made clear in Teixeira. The rights conferred are only rights to residence for the specific purpose set out.  The right in 12(3), in my view, clearly does not, for the reasons I have given at paragraph 20, provide a qualifying right of residence that confers a right to permanent residence under Article 16.  The right recognised in Teixeira under the 1968 Directive is a right under a different Directive; it does not provide a qualifying right to permanent residence under Article 16.
33.	Nor, in my view does the second way suggested by Mr De Mello provide a right.  It is simply not tenable to suggest that if a person manages to stay in a Member State beyond the period of five years, even though he has no right under the Directive to permanent residence, Article 16 provides a self standing right.  The scheme of the Directive is, in my view, clear.  The requirement of Article 16 is a requirement that the right has been obtained through Chapter 3 and simply cannot be obtained by residence that is not unlawful for a period of five years.  That argument was rejected by this court in Dias v SSHD [2009] EWCA Civ 807. On the question referred to the Court of Justice of the European Union, Advocate General Trstenjak has reached the same conclusion in her opinion given on 17 February 2011 (C-325/09).
34.	Furthermore the decision of the court in Lekpo-Bozua v London Borough of Hackney [2010] EWCA Civ 909 decided that failure to take steps to remove cannot confer rights under Article 11.  In giving the judgment of the Court Sir Anthony May, President, said:
“The stark submission appears to be that any person who succeeds in remaining in the United Kingdom for 5 years acquires a right of permanent residence whether their intervening residence was legal or not.  Legality, it is said, is derived from the fact that the state has not taken steps to remove the person even though the residence did not meet the conditions of Article 7 of the Directive.  So long as the state takes no steps to remove, the residence is to be regarded as lawful.  Mr De Mello submits that, once there has been 5 years continuous residence, the only limitation is that in Article 16.3 of the Directive (which does not apply in Océane’s case).  Asked by the Court for the legal principle on which his submission rested, Mr De Mello struggled to answer.  He was not promoting a kind of prescription, but was promoting a variety of waiver. ”
The President at paragraph 18 set out his view on the clear meaning of “legally” in Article 16:
“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”.  This was the view of Pill LJ in paragraph 31 of his judgment in McCarthy v Secretary of State for Home Department [2008] EWCA Civ 641, where he said that the Directive creates and regulates rights of movement and residence for Union citizens.  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 expression “resided legally” in Article 16 should be read consistently with, and in the sense of, recital 17 of the Directive, that is residence “in compliance with the conditions laid down in this Directive”.  We respectfully agree with this.  The focus is on community law and lawful residence under domestic law would not by itself amount to residing “legally” under Community law.  In the present case, domestic law and Community law are materially to the same substantial effect.  In our judgment, a failure to enforce Océane’s removal after 3 months did not graduate by waiver to her acquiring a permanent right to residence after 2 years or 5 years or any other period.  She remained upon tolerance subject to immigration control with no right to remain.”
35.	In my view it is clear that the whole scheme of the Directive points to the fact that the rights to acquire permanent residence for persons in the position of the father and the children are governed by Article 12 which has set particular conditions for their acquisition of the right of permanent residence for such persons.  This is not only clear from the scheme of the Directive, but was also made clear in the Commission’s Explanatory Memorandum on the proposal for the Directive  (COM(2001) 257 final) at page 14:
“The right of residence of the surviving family members who are not nationals of a Member State is subject to their being engaged in gainful activity or having resources or being a member of a family, already constituted in the host Member State, of a person satisfying these conditions, until they acquire the right of permanent residence.  Unlike the case of Union citizens, a simple bona fide declaration would not be sufficient; the persons concerned will have to prove they satisfy the conditions.”
36.	I therefore conclude that the father and the children had no rights of legal residence under EU law which gave rise to rights under Article 16 to permanent residence.
(v)	Lawful residence under national law
37.	In addition to contending that a right of lawful residence could be acquired under the provisions of EU law, Mr De Mello relied upon the opinion of Advocate General Kokott in McCarthy v SSHD Case C-434/09 given on 25 November 2010 in support of his argument that a right of lawful residence could be obtained under national law.  In that case, a dual national of Ireland and the UK claimed that she was entitled to reside in the UK on the basis of her EU citizenship as an Irish citizen so that her husband, a non EU national, could obtain by virtue of EU law a right to reside in the UK.  The Supreme Court asked two questions, the second of which was:  “Has such a person resided legally within the host member state for the purpose of Article 16 of Directive 2004/38 in circumstances where she was unable to satisfy the requirements of Article 7 of the Directive?”  The Advocate General observed that the concept of legal residence which Article 16(1) makes a pre-condition of the acquisition of permanent residence was not precisely defined in the Directive.  Although the Preamble referring to legal residence meant residence in compliance with the conditions laid down in the Directive, it should not be interpreted restrictively and rights of residence could be obtained through the law of the host state.  She concluded at paragraph 57.
“The referring court’s second question would therefore have to be answered as follows:
Legality of residence, which under Article 16(1) of Directive 2004/38 is a precondition for acquisition of a right of permanent residence, can result from EU law or from the host Member State’s domestic law on foreign nationals.”
In my view, the opinion does not assist Mr De Mello’s argument in this case that the right under Article 12(3) or the rights derived from the residence permit under Article 11 give rise to a right of permanent residence under Article 16. 
38.	Assuming for the purpose of Mr De Mello’s argument that the opinion establishes that a right of lawful residence for the purposes of establishing a right of permanent residence under Article 16 can be derived from national law, the question arises as to whether any arises in this case.  Mr De Mello relied on a concession recorded in the judgment of Wilkie J in Kungwengwe v SSHD [2005] EWHC 1427 (Admin) as assisting his argument in establishing such a right.  In that case the applicant, a national of Zimbabwe, had come to the UK in 1992; she was granted various visas and then after her marriage to a Portuguese national, Mr Barroso, in 1999 had been given permission to reside for five years as a member of Mr Barroso’s family; this period expired on 7 October 2004.  She subsequently separated from him.  She sought to rely on her residence in the UK for over 10 years; the issue for the court was whether in determining lawful residence the period she had resided as a result of her rights arising from her marriage to Mr Barroso counted.  For reasons that are not material her claim failed.  Mr De Mello relied on the concession made by counsel for the Secretary of State recorded in these terms at paragraph 14 of the judgment.  
“That residence document, once issued, was valid for at least 5 years unless revoked by the Secretary of State.  It had not been revoked nor, in the current state of knowledge of the claimant and the Secretary of State, could it be revoked.  The current whereabouts and status as a worker of Mr Barroso is unknown and therefore there is no basis for saying that he is not, or has ceased to be, a qualified person.  In those circumstances the Secretary of State, rightly in my judgment, concedes that in common parlance the claimant was until 7 October 2004 a person who was "in lawful residence".”
Mr De Mello contended that the concession was rightly made by the Secretary of State; it showed that if a residence document was not revoked it gave rise to a right of residence under national law.  It is not necessary to decide whether the effect of the concession was right, as the Secretary of State could not show that Mr Barosso had ceased to be qualified.  In this case, the person on whom the rights of residence depended had died and the position of the Secretary of State was quite different.  If the concession in that case was to the effect that, if the Secretary of State had not revoked a residence document, even though he was entitled to do so, it gave rise to a right of lawful residence under UK law, then that was not a concession that was rightly made.  It is clear that if a person no longer has a right to reside in the UK, the fact that the Secretary of State has not cancelled the document which initially granted that right cannot establish a right of lawful residence under national law: see for example the passage I have cited above from the decision in Lekpo-Bozua.  
Conclusion
39.	For these reasons I would therefore dismiss this appeal.
Lord Justice Etherton:
40.	I agree.
Lord Justice Maurice Kay:
41.	I also agree.