These applications may be made based on relatively recent circumstances, but also on periods of residence a significant time ago. Indeed, the case law makes it clear that the exercise of Treaty rights can bring a right of permanent residence even though the residence in question predated 2006, when the Citizens Directive, which actually first created the concept of permanent residence, entered effect. The key case on this issue is Lassal [2010] EUECJ C-162/09.
- – There is also a useful discussion of the development of the principle in Vassallo [2016] EWCA Civ 13 (which even looks at the question as to whether very ancient periods of residence could qualify, eg those before the Treaty of Rome entered force in 19578 or before the existence of free movement laws – concluding that they probably don’t).
- – Indeed this even includes residence before the accession of one’s home EU country to the European Union: see Ziolkowski (C‑424/10).
- – Annex B of Chapter 6 of these archived European Casework Instructions sets out a timeline of European legislation from 1972-2006 showing when various free movement and residence rights were actually created
Whatever the ancient period of residence, nobody can actually obtain permanent residence before 30 April 2006, when the right was first created via the Citizens Directive.
Example
Ahmed is a Danish national. He has been living in the UK from 2001 and worked until 2004 when he became permanently incapacitated. He never applied for residence documentation. On a visit to Yemen in 2012 he met and married his wife, Aziza, a Yemeni national. Her family permit refusal cites the fact Ahmed was not exercising treaty rights at the time. The First-Tier Tribunal found Ahmed had acquired permanent residence on the coming into force of the 2006 Regulations under Reg 15(1)(c) as an EEA national having ceased activity. He satisfied Reg 5(3) because he had evidenced 2 years’ residence and work prior to termination of his activities due to incapacity of a permanent nature as well as his continuous residence in the UK thereafter. The right to permanent residence was introduced only on 30 April 2006 when the 2006 Regulations came into force. Schedule 4, para 6 of these provided periods of residence in accordance with the 2006 Regs, before that date may count towards permanent residence unless followed by 2 years’ continuous absence from the UK or 2 years’ continuous failure to exercise treaty rights before that date.
Ahmed terminated work over 2 years before 30 April 2004, but his 2 years’ work were still counted towards his permanent residence since, by definition, it was the permanence of the incapacity following it which gave rise to his permanent right to reside.
The pre-2006 residence provisions are now in Sch 6 para 8 of the 2016 Regs.