The Brexit vote on to leave the EU is causing huge anxiety amongst EU citizens and their family members resident in the UK. Professor Steve Peers has suggested I write something to help those looking to apply for permanent residence as a sort of safeguard.
It is a very good idea and I hope it will be useful. I do not know why I did not think of it myself! I have extracted and adapted parts of a recent ebook I have written on EU free movement rights and making a free movement application in the UK. The ebook is aimed at members of the public rather than lawyers.
Before going further, let me say that I have no idea whether it will be useful to possess permanent residence when the UK does eventually leave the EU. It is impossible to know what will happen and what arrangements will be made but I would certainly expect a proper and generous form of status would be conferred on EU citizens resident in the UK under existing free movement laws.
- What is permanent residence?
- How do I get permanent residence?
- Automatic nature of permanent residence
- Combining different qualifying activities for permanent residence
- Residence prior to the Citizens Directive
- Retained rights for EU citizens and family members
- Permanent residence not necessarily permanent
- Making a permanent residence application
- Naturalisation as a British citizen
- What should I do if my permanent residence application is refused?
What is permanent residence?
Permanent residence is the right to live permanently in a Member State irrespectively of whether the holder of the status is exercising Treaty rights as a worker, self employed person, self sufficient person, student or family member of one of these categories. Basically, the first five years of residence depend on being a worker etc, but after that the person can lose their job, cease economic activity or cease being a family member but still be entitled to reside in the Member State concerned.
So, an EEA national from outside the UK will automatically qualify for permanent residence after five years of living in the UK while exercising their Treaty rights and qualifying under the Citizens’ Directive. If the EEA national choses to do so, he or she can apply for a permanent residence card as evidence of possession of this right.
There is no need to apply for a permanent residence card in order to acquire the right of permanent residence, the card merely acts as evidence.
Nevertheless, for practical purposes many may well choose to apply for a permanent residence card in order to have proof that they possess the right and as a matter of convenience.
There is an additional reason why a person might choose to apply for a permanent residence card: because he or she is not sure whether he or she does possess the right and he or she seeks confirmation one way or the other. The acquisition of permanent residence can be quite complicated in some cases, for example where there are gaps in employment or self employment, earnings have been very low or the person needs to rely on what are called “retained rights of residence” (see below). In most cases, though, it is straightforward.
How do I get permanent residence?
Permanent residence is acquired after five continuous years of possession of the right of residence. The right of residence is possessed by a person who is exercising Treaty rights, which means moving to another Member State within the EEA other than your own and then engaging in one or more of:
- self employment
- self sufficiency and
The family members of an EEA citizen who engages in one of these activities will also qualify for permanent residence after five years.
Absences from the UK of up to six months do not disqualify or prevent a person from acquiring permanent residence. Gaps in employment are also permitted in some circumstances. As a rule of thumb, anything up to six months should be fine and longer can be OK in some circumstances. Maternity leave of up to 12 months should be fine.
There are certain circumstances in which a citizen may exercise free movement rights in his or her own Member State relying on either what are known to lawyers as Carpenter or Surinder Singh rights.
What counts as work, self employment, self sufficiency and study and who counts as a family member for the purposes of EU law are too big a subject to explore here but is dealt with in my ebook. A person who is unemployed may still retain their worker status in EU law for a certain period of time, for example, and the source of self sufficiency can be in part from a family member from outside the EEA.
You can also read the two key legal documents on free movement rights for yourself. The first is Directive 2004/38/EC, commonly referred to as the Citizens’ Directive. The second is the UK’s implementation of the Directive, the Immigration (European Economic Area) Regulations 2006 (link to unofficial but up to date version). Where the UK regulations do not accurately reflect or transpose the Directive, the Directive takes legal precedence in the courts.
Automatic nature of permanent residence
Like the other rights of EU citizens in the Citizens’ Directive, permanent residence is an automatic right that operates by law; a successful application for a permanent residence card is not necessary in order to possess the right. It operates like nationality law. A person is born with a certain nationality but is not born clutching a passport; an application can be made later for a passport if the person wishes to travel, though.
However, the flip side of this coin is that five years of possessing a residence certificate or card does not automatically qualify the holder for permanent residence. What matters when it comes to qualifying for permanent residence is whether the person was genuinely qualifying under the Citizens’ Directive for a period of five years, not whether the person held a residence certificate or card. This means there can be some controversy about whether a person does or does not possess permanent residence.
This means that when applying for permanent residence, the applicant will basically need to submit five continuous years’ worth of the kind of evidence that is necessary for a residence card.
Combining different qualifying activities for permanent residence
It does not matter how a person has been a qualified person for five years; during a five year period an EU citizen may have been first a worker, then unemployed for a a few weeks, then self employed, then a student and still potentially qualify for permanent residence.
To put it another way, any qualifying activities can be combined together to acquire permanent residence as long as they amount to five continuous years of some sort of qualifying residence.
In addition, you can select any five year period of residence by which to qualify. If you previously worked for five years but have been out of work for the last five years, you can use the earlier five year period of work in order to qualify.
Residence prior to the Citizens Directive
Even though permanent residence was only created as a right by the Citizens’ Directive on 30 April 2006, earlier periods of residence under previous EU law provisions can count towards permanent residence and in fact can have created a right of permanent residence, even though the right did not actually exist at that time.
Retained rights for EU citizens and family members
As well as protection for jobseekers and against unemployment, there are some additional protections which allow an EEA national to qualify for permanent residence even before five years are up even though he or she has not completed the normal five years of qualifying activities. These are referred to as retained rights in the Citizens’ Directive and appear at Article 17:
(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…
(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.
These categories are replicated in the UK regulations at regulation 5 under the title “Worker or self employed person who has ceased activity”.
Permanent residence not necessarily permanent
Despite including the word “permanent” the right of permanent residence may be lost in certain circumstances, including through absences in excess of two years or due to public interest deportation action against the individual.
Deportation action is beyond the scope of this post but it is important to mention it here as a possibility.
Making a permanent residence application
As already discussed above, in order to qualify for permanent residence a person needs to have been residing in the UK as a qualified person for five years. Possession of a residence certificate or residence card is not enough by itself, because these are always issued for five years and a person might cease their qualifying activity during the five year period.
The same is true when applying for a permanent residence certificate or card; what is needed is evidence of residing in the UK as a qualified person or family member for the required five years.
Do I need to use the official EEA(PR) form to apply for permanent residence?
The 85 page EEA(PR) form does not have to be used because the right of permanent residence is an automatic and inherent one that depends on whether you an application to the UK Home Office or the form that you use if you do apply. As discussed in the ebook, there are no mandatory forms for applying for EU residence documents.
However, the payment page from the EEA(PR) must be used if applying (page 6) and if a third country national family member is applying then the biometric information pages should also be completed (pages 8 to 13).
The old 41 page EEA3 can be used by EEA nationals to apply instead or a covering letter could be used. The EEA3 is far less intrusive than the EEA(PR). The relevant sections of the EEA3 depend on your situation:
- EEA national: sections 1, 7, 8, 9, 10, 11, 12.
- 3rd country family member: sections 1 and 3 if applying for self or section 2 if included in EEA national’s application, section 4 or 5 if retained rights case, section 6 if Surinder Singh case, sections 8, 9, 10, 11, 12.
Many immigration lawyers, including me, now advise clients not to use the new generation of EEA forms introduced by the Home Office in 2015 because these forms request far too much information, are far too intrusive and seem to have been deliberately designed to elicit information that can then be used for refusals of dubious legality.
What evidence do I need to include in a permanent residence application?
The type of evidence required will therefore depend on how the person qualifies for permanent residence. To put it another way, the same kind of evidence needed to obtain a residence certificate or card will be needed for permanent residence, but this time five years’ worth of it.
The evidence suggested on the EEA(PR) form itself is generally reasonable and proportionate. The same cannot be said of the evidence that is suggested in the accompanying guidance notes. These guidance notes even use mandatory language (“must”), which is legally wrong.
It is instructive to look at the old EEA application guidance notes, which were far shorter and simply said as follows about applications for permanent residence:
The documentation you need to send us along with your application is the same as the evidence required for a Registration Certificate, except that you must provide proof that you have been resident in the United Kingdom for a continuous five-year period and that you were exercising treaty rights during this time. Examples of how you can prove that you have been resident include tenancy agreements, utility bills and bank statements. Examples of the evidence to support exercising treaty rights can be found under the Registration Certificate section of these guidance notes. You will need to provide documentation which confirms that all the family members included on the application form have been resident for the full five-year period. In the case of children, this may include school or nursery letters or immunisation records.
There has been no change in EU law since that old guidance was withdrawn at the start of 2015 by the Home Office; there is no prescribed list of documents that must be submitted.
The EEA(PR) guidance notes set out the Home Office’s current wish list of documentation for different scenarios. For an EEA national worker, for example, the guidance suggests:
- Letter from each employer confirming the dates you/your sponsor worked for them, salary/wages, normal hours of work, and the reason the employment ended (if relevant)
- Wage slips and/or bank statements showing receipt of wages (this must cover each job you have/your sponsor has held during the relevant qualifying period)
- P60s for each year in which you were/your sponsor was employed.
If you can’t submit the documents above (for example, you’ve lost the relevant documents, the employer is no longer trading or you are/your sponsor is unable to contact them), you should enclose a letter explaining why not and you must submit alternative evidence of the relevant employment, such as:
- signed contract of employment
- notice of redundancy
- letter accepting resignation
- letter of dismissal
- employment tribunal judgment relating to the employment.
In fact a letter from your employer or employers and/or employment contract(s) and P60s should be more than sufficient, with any gaps around the P60s filled in with wage slips and bank statements showing receipt of wages. Bank statements do not have to be submitted as a matter of law, but many elect to submit them to minimise the possibility of problems with the Home Office. Personal expenditure can be redacted (blacked out with a marker pen) from bank statements; Home Office officials only need to see the money was genuinely received, they do not need to know what you spent it on.
The documentary requirements set out in the guidance notes for a self employed person are preposterously complex, filling an entire annex to the guidance. This is dealt with in more detail in the ebook but the basic position is that you need to submit enough to show you are genuinely, lawfully self employed in genuine economic activity.
The EEA(PR) guidance notes can be used as a guide and checklist but remember that you need to prove your entitlement to permanent residence using documents that can not easily be forged or manufactured; you do not need to submit every single document suggested by the Home Office.
Where your application for a permanent residence certificate or card is based on retained rights, appropriate evidence will be needed depending on how the rights were retained. For example, evidence that the EEA national was still working at the time he or she died or at the time that the decree absolute was issued may be necessary.
Naturalisation as a British citizen
For naturalisation applications by an EEA national or family member to become a British citizen, see this blog post: EU nationals must apply for permanent residence card for British nationality applications.
What should I do if my permanent residence application is refused?
There are three options available to you if an application for permanent residence is refused:
- Do nothing and accept the decision. If the Home Office was correct, this is obviously the most sensible way forward!
- Make a new application. If the refusal was because of incomplete or unsatisfactory (in the view of the Home Office) documents then you can always submit a new application with better and more complete documents.
- Lodge an appeal. There is a right of appeal to the immigration tribunal against refusal of an EU residence decision. This might be the best way forward if the refusal was legal in nature or you have no further evidence you can submit. For example, if you claim to have retained your worker status during a year of unemployment and you have no further evidence of seeking work you can send to the Home Office, your only realistic option is to pursue an appeal.
Appeals can be submitted online or by post.
If your application is wrongly refused and you later prove that you did have a right of residence or permanent residence, you can pursue a compensation claim against the Home Office: Home Office pays £40,000 in damages for delay in issuing EU residence documents. Pursuing such a claim is not an easy thing to do and the vast majority do not consider it worth the stress and effort.
I hope this post helps you. If you want to know more about free movement rights and read further advice and examples on applying for residence documents, take a look at the full ebook. I can be booked for personalised advice through Garden Court Chambers.
This clear and accessible guide covers the legal requirements for EU residence documents and the practicalities of making an application including advice on documents and forms.