The Right of Permanent Residence
The Citizen’s Directive, Directive 2004/38, introduced a new and updated right of permanent residence, open to all EU nationals who exercised Treaty rights in a host Member State for a continuous period of five years, and to their family members.
The right is contained in Article 16 of the Directive:
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.
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
It is possible to obtain the right of permanent residence as an EEA national prior to exercising Treaty rights for a continuous 5 year period in accordance with Article 17 of the Directive:
1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:
(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years. If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;
(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.
If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence; (c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week. For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.
The Immigration (EEA) Regulations 2006, transpose the right at Regulation 15:
15. (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;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person who has ceased activity;
(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 the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence.
(1A) Residence in the United Kingdom as a result of a derivative right of residence does not constitute residence for the purpose of this regulation.
(2) The right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3) A person who satisfies the criteria in this regulation will not be entitled to a permanent right to reside in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 19(3)(b), 20(1), 20A(1) or 23A.
Once gained, the right of permanent residence means that there are no longer restrictions on a Union citizen’s residence in relation to sufficiency of resources, work, comprehensive sickness insurance, etc. There is no requirement for EEA nationals or their family members to apply for this right: it is automatic, though applications for a document certifying permanent residence or a Permanent Residence Card (for non-EEA nationals) mean that it is easier to prove.
The benefits of showing a right of permanent residence in the UK are that restrictions on leave fall away, access to certain benefits, including maintenance for studies, is on the same footing as for UK nationals, and there are greater protections against deportation.
It is possible to apply for a document certifying permanent residence or a Permanent Residence Card based on ‘historic’ residence, e.g. 2005 – 2010 rather than 2010 – 2015, but evidence of exercise of Treaty rights is essential throughout the period, and it must be borne in mind that an absence exceeding two years will cause the right to be lost.
For advice and assistance with applying for a document certifying permanent residence or a Permanent Residence Card based on either five years’ continuous residence exercising Treaty rights or on a shorter period in accordance with Article 17 of the Directive, contact our specialist EEA immigration barristers in London on 0203 617 9173 or via our online enquiry form.