Home › News › Securing EEA Nationals’ Residence Rights
The rights of EEA nationals to reside in the UK are integrated under three principle categories of residence:
1. A right to reside for up to three months without any conditions or formalities other than holding a valid identity card or passport (Article 6);
2. A right to reside for more than three months if they are workers or self-employed; if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host state and have comprehensive sickness insurance; themselves and their family members not to become a burden on the social assistance system of the host state (Article 7); and
3. A right to permanent residence, acquired after residing ‘legally’ (in accordance with the Citizens Directive) for a continuous period of five years (Article 16)
The situation for EEA Nationals remains unclear and their family members residing in the UK. However, the group of EEA nationals and family members whose position is most likely to be protected in the course of negotiations over the UK’s exit are those who have acquired a right of permanent residence or those who have EU right of residence not not yet acquired permanent residence.
Proving their rights
In light if Brexit, EEA nationals and their family members should consider obtaining documents proving their exercise of EU law rights and status in the UK.
Proof can come as one of the following types of document:
1. For EEA national workers and other qualified persons, and for the EEA national family members, a registration certificate (Article 8 Citizens Directive; regulation 17 of the Immigration (European Economic Area) Regulations 2016);
2. For EEA nationals who have acquired five years of legal, continuous residence in 19 Citizens Directive, regulation 19 of the 2016 Regulations;
3. For non-EEA family members of a qualified person or an EEA national with a right of permanent residence, a residence card, (Article 10 Citizens Directive; regulation 18 of the Immigration (European Economic Area) Regulations 2016;
4. For the non-EEA family members of EEA nationals who have acquired a right of permanent residence, a permanent residence card (Article 20 Citizens Directive, regulation 18 of the 2016 Regulations).
A mandatory fee of £65 is payable for residence documents.
As well as a fee other mandatory documents are:
A valid passport or identity document must be provided for all types of residence cards.
Bio-metric information for non-EEA family members applying for a residence card (at a cost of £19.20 per person). There is no similar requirement for EEA nationals when they apply for a residence certificate.
For family members of EEA nationals a document attesting to the existence of a family relationship or a registered partnership is needed. This could include a marriage certificate or for a child or parent a birth certificate.
Qualifying for permanent residence EEA (PR)
There is no prescribed list of documents that must be submitted. What is needed is evidence of residing in the UK as a qualified person or family member for a continuous five year period.
Possession of a residence card or certificate is not enough because a person might have ceased their qualifying activity during the 5 year period.
‘Continuous’ means that you must not have left the UK for more than six months in any calender year during the five-year period, although longer absences are permitted under some limited circumstances.
The five year period could be any five year period, not just the last five years. You can also “mix and match” your qualifying activities, so you can combine say 2 years of employment with 3 years of being a student (as long as you have had CSI). There are also circumstances in which you can get early permanent residence and don’t have to have 5 years of qualifying activity, such as where you were working but then retired or have a permanent incapacity. Also, if the five year period is more than two years ago, an applicant would also need to show they have not been absent for more than two years as otherwise their PR will have lapsed.
Applications for a document certifying permanent residence or a permanent residence card have to show that they have had comprehensive health insurance for the whole of the five years of the continuous residence. Home Office guidance states that it would be sufficient for applications to show that they have held a EHIC for the full five years as long as it covers the whole of the period being relied upon and features a ‘valid from’ date which covers the start of that five year period. The Home Office cannot request a statement of intent (like it does for students applying as a qualified person) as this is an application which looks retrospectively at whether an applicant has acquired a right of permanent residence and future intentions are irrelevant.
Qualifying as a family member EEA (FM) and extended family member EEA (EFM)
Family members of EEA nationals have few fee standing rights of their own, as their rights largely flow from the family member’s relationship with the EEA citizen.
Family members are defined in the Citizen’s Directive at Article 2 (2), provisions which are mirrored in the UK 2006 Regulations at paragraph 7 (1)). in summary they include:
1. Spouse or civil partner.
2. Children or grandchildren (of the EEA citizen or their spouse or partner) under the age of 21 OR who are dependent on the EEA national.
3. Parents or grandparents (of the EEA citizen or their spouse or partner) who are dependent of their EEA national son or daughter.
Neither an EEA national, nor a family member with a residence card from another Member State, needs a family permit. Their passport or identity card will suffice (see case of McCarthy 2013/OJC189/12). Family permits are needed by family members travelling directly to the UK from outside the EU. Third Country National (TCN) family members may be required to have an entry visa but Member States must facilitate this (MRAX).
By Matthew Evans
Director, AIRE Centre
