The UK’s vote to leave the EU on 23 June 2016 has not yet brought about any changes to the UK’s current membership of the EU. Until the UK leaves the EU, forecast to be some time in 2019, EU law continues to apply in the UK as it has done since the UK joined the European Economic Community (EEC) (as it then was) on 1 January 1973.

Unsurprisingly, the referendum has left EEA nationals in the UK with concerns about their future here, and UK nationals living in the EU with similar concerns. We cannot predict the future, but advisers should be able to reassure their EU clients that it is unlikely that those lawfully in the UK at the date the UK leaves will be required to leave (though they might require leave)! The general atmosphere has led to a large increase in the number of EU nationals in the UK wanting to document their right to reside in the UK, but also to a large number of such applications being refused.

There is valuable guidance available from the Home Office EEA (PR) guidance notes.

Where an EEA national has spent five consecutive years residing in the UK working, studying, or being self-sufficient (ie exercising Treaty rights), they may have a good claim for permanent residence (see Reg 15(1)(a) of The Immigration (European Economic Area) Regulations 2016). So too may a family member who has lived in the UK at the same time (Reg 15(1)(b)).

Those are the other entry routes into permanent residence:

• – Workers or the self-employed who have ceased activity (Reg 15(1)(c))
• – The family members of workers or the self-employed who have ceased activity: so long as the individual in question was a family member with a right to reside as such at the moment activity ceased (Reg 15(1)(d)), against which Reg 5 must be read very closely (note that we deal with workers who have ceased activity in detail in our course The EEA Regulations 2016)
• – Family members of those workers and the self-employed who have ceased activity, so long as they enjoyed the status of family members at the moment activity ceased –Reg 15(1)(d))
• – Family members of workers and the self-employed who have died, where they resided together immediately before the death and the deceased person had lived in the UK for 2 years or died due to an accident at work or an occupational disease (Reg 15(1)(e))
• – Family members with the retained right of residence who have resided in the UK satisfying the Regs for 5 years in total (Reg 15(1)(f)) (normally this will consist of a period of conventional residence as a family member, combined with a more recent period of having retained the right of residence)

EEA law has not so far recognised rights of permanent residence for persons present with derivative rights of residence (such as those based on a child’s citizenship or education).

It is important to appreciate that evaluating permanent residence cannot be treated as a discrete area of EEA law. Here we address relatively straightforward cases, with the occasional quirk that may arise. But a more complicated case may involved a detailed understanding of almost any aspect of EEA residence rights.

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.