Counting maternity leave towards the qualifying period for permanent residence

Regulation 15(1) of the Immigration (European Economic Area) Regulations 2006 (the ‘Regulations’) provides that an EEA national will acquire the right of permanent residence where they have resided in the UK in accordance with the Regulations for a continuous five year period.

The term ‘residing in the United Kingdom accordance with’ the Regulations requires evidence that the EEA national has been living in the UK as a ‘qualified person’. The term ‘qualified person’ is defined by Regulation 6 as:

• A jobseeker;
• A worker;
• A self-employed person;
• A self-sufficient person; or
• A student.

It is clear that those who are employed in the UK will be considered a worker for the purpose of Regulation 6. In some circumstances it is possible for an EEA national to ‘retain’ the status as a worker when they stop working either through illness, an accident, redundancy or maternity leave.

The Upper Tribunal has recently been required to consider the circumstances in which it may be possible to count time spent on maternity leave towards the five year period to acquire permanent residence in the UK. The Upper Tribunal stated in

Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect ) [2015] UKUT 540 (IAC)

that maternity leave can be counted towards the five year residence requirement where the following are met:

• The EEA national must have stopped working or looking for work no more than 11 weeks before the expected date of confinement;
• The time spent on maternity leave must not extend more than 52 weeks from when the EEA national stopped working or looking for work; and
• The EEA national returned to work at the end of the period of maternity leave.

In relation to 1) the Upper Tribunal stated at paragraph 22 that the period of 11 weeks is established by Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. The Upper Tribunal stated that they would not rule out the possibility of those stopping work or who have stopped looking for work before the 11 weeks if there were other factors which meant that the physical constraints of pregnancy prevented them from working, for example a multiple pregnancy, or if there were particular elements of the job which could not be carried out due to the pregnancy. This must, however, be supported by documentary evidence.

In relation to 2) the Upper Tribunal concluded that a ‘reasonable’ period having been outside the labour market by reason of being on maternity leave is 52 weeks. That said, the Upper Tribunal commented at paragraph 51:

‘We consider that it must not be forgotten that although pregnancy is not an illness, illness during pregnancy or afterwards which prevents a woman from working, or job-seeking, may engage regulation 6 (2) of the EEA Regulations in any event’.

The Upper Tribunal therefore envisaged that there may be circumstances due to illness either during or after the pregnancy which may allow the EEA national to be a worker for the purposes of Regulation 6 after the period of 52 weeks. As always, much will turn on the facts of the individual case and the evidence provided, but could (potentially) include those who have suffered with post-natal depression, amongst others.

Provided that there is a return to work after 52 weeks then this period will count towards satisfying the qualifying residence period required by Regulation 15.

Whilst a return to work is a requirement to allow an EEA national to count that period spent on maternity leave towards meeting the qualifying residence requirement, an EEA national may be required to demonstrate that she is in the UK lawfully whilst on maternity leave and before having had the opportunity to return to work. In this regard the Upper Tribunal stated at paragraph 56:

‘[…]so long as it is shown that she ceased work or looking for work owing to the physical constraints of the late stage of pregnancy, in effect, 11 weeks or less before the EDC [the expected date of confinement], then there is a presumption that she has not left the employment market[…]’.

The Upper Tribunal’s determination provides clarification as to how time spent on maternity leave will count towards the relevant 5 year qualifying period in order to acquire the right of permanent residence in the UK.

If you are an EEA national or the family member of an EEA national and would like further advice regarding permanent residence in the UK then please then please contact our immigration barristers in London via our online contact form  or call us now on 0203 617 9173.

Thomas Aitken