Acquisition of Permanent Residence under EEA law
The right of permanent residence under EU law is acquired by Union citizens and their family members after five years’ continuous legal residence in a host member state.
What constitutes 5 years’ continuous residence?
Continuous residence for the purpose of EU law is defined in Regulation 3 of the Immigration (EEA) Regulations 2006 (as amended), and follows the definition in Directive 2004/38. Continuity is not affected by periods of absence which do not exceed six months in total per year, or by periods of absence from the UK on military service, or by one absence for up to 12 months, where this is for an important reason, such as childbirth, illness, or an overseas posting.
This is not as strict as the residence requirements for obtaining settlement in the UK, for instance in the 10 year long residence route 540 days in total over the ten years and a maximum of 6 months outside the UK at any time is permitted. However, it is possible that some days above 540 may be disregarded, or for other factors to weigh against the strict application of the total number of days requirement.
What residence counts as legal residence?
The EEA Regulations at Regulation 15 say residence must be ‘in accordance with these Regulations’ to count towards the five years’ continuous residence.
Case C 162/09 Lassal  ECR I-9217confirmed that residence prior to the implementation deadline for Directive 2004/38 (on 6 April 2006) counts for the purpose of acquisition of permanent residence. Here, a French national resided in the UK as a worker from 1999 – February 2005 in accordance with EU law, left the UK and re-entered in December 2006. Following an application for social security assistance, her right of permanent residence came to be considered by the CJEU, which found that residence in accordance with the pre-Directive legislation counted towards legal residence for the purpose of five years, and also that the right of permanent residence was not lost by an absence of less than two years.
Further guidance from the CJEU is found in Cases C-424/10 Ziolkowskiand C-425/10 Sjeza ECR I-14035, where the Court clarified that residence in accordance with Article 7(1) of Directive 2004/38 but under national law, rather than EU law, can count towards the acquisition of permanent residence. In this case, Polish nationals, who did not become EU nationals until 2004 when Poland acceded to the EU, were able to rely upon residence prior to 2004 to demonstrate their right of permanent residence as this was in accordance with the requirements under Directive 2004/38. Paragraph 46 of the judgment states as follows:
‘It follows that the concept of legal residence implied by the terms ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1).’
In Case 359-11, Alarape and Tijani  ECR I-290 the Court of Justice of the European Union found that periods of residence completed by non-EEA national family members in a host member state solely on the basis of article 12 of Regulation (EEC) No 1612/68 could not be taken into consideration for the purposes of acquisition of a right of permanent residence by those family members.
This is in line with the UK Regulations’ interpretation, as residence under the Regulation 1612/68 (which was repealed by Regulation 492/11) is not residence under Directive 2004/38, which the UK regulations transpose.
An EEA national or family member being able to demonstrate that they have acquired the right of permanent residence in the UK gives greater protection against expulsion, and more certainty of the right of equal treatment in relation to certain benefits. Additionally, for the non-EEA national, following a year without restriction on their leave, it may be possible to consider naturalisation as a British citizen.
For advice or assistance in relation to an EEA application or appeal, contact our specialist EEA immigration barristers in London on 0203 617 9173 or via our online enquiry form.