In RM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 775 (Longmore & Gloster LJ and Sir R Jacob), the Court of Appeal held that a third country national is entitled to permanent residence pursuant to Article 17(3) of Council Directive 2004/38/EC where she was married to an EU citizen with permanent residence who died after experiencing permanent incapacity to work, and her right was not subject to the residence requirements of either article 12(2) or article 16(2).
Longmore LJ offered the following observation as a postscript to the main judgment:
“I have found it a little puzzling that, whereas under Article 16 a family member of a Union citizen (who has resided legally for a continuous period of 5 years in a host Member State) does not acquire a right of permanent residence unless he or she has resided with the Union citizen for a continuous period of 5 years, under Article 17 the family member of a Union citizen (who has resided continuously in the host Member State for more than two years and has stopped working as a result of permanent capacity to work) can acquire a right of permanent residence immediately he or she becomes a family member by marrying that Union citizen. But that does seem to be what Article 17 says.” (At para [56]).
