This is, without question, the most depressing paper I have ever had to draft in my capacity as a Barrister specialising in Immigration and Human Rights Law. It is important to stress that the Brexit vote should not cause EU nationals living in the UK to panic. It is likely to be sometime before we can be certain as to what will be the outcome, but it is extremely unlikely that there will be any change to the rights for those who are presently working in the UK. Whether there will be changes to the rights of the family members is perhaps more uncertain, but nothing can change until the UK formally leaves the EU.
Nevertheless, it is this tragic uncertainty that is leading European nationals in the UK to try to protect their position, and the most likely response in any Google search on this topic will be to apply for ‘Permanent Residence’.
Until the UK Brexit’s, there remain two key documents from which the rights of EEA nationals to live and work in other members states are derived: the Citizen’s Directive’ 2004/38/EC and the implementation of this Directive by the UK into its domestic law, Immigration (European Economic Area) Regulations 2006.
The right of residence is possessed by EEA nationals and their family members who are exercising Treaty Rights. ‘Exercising Treaty Rights’ simply means moving to another Member State within the EEA other than your own, and then ‘exercising’ one or more of the following ‘rights’ enjoyed by citizens of EEA Member States (which shortly, save for a miracle, will no longer include the UK!):
- self employment
- self sufficiency
Permanent Residence is the right to live permanently in a Member State irrespective 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.
The first five years of residence will depend on being a worker, self-employed, self-sufficient or a student, but after that the person can lose their job, cease economic activity and still be entitled to reside in the Member State concerned. This is also applicable to those who are ‘family members’ of those who are engaging in the ‘Exercise of Treaty Rights’.
An application for permanent residence can also be made by those who have a ‘retained’ right where, for example the EEA spouse was exercising Treaty Rights when they died or at the time when a decree absolute was issued.
So, under the Citizen’s Directive an EEA national from outside the UK will automatically qualify for permanent residence after five years continuous living in the UK while exercising their Treaty Rights and the EEA national can choose to apply for a permanent residence card as evidence of possession of this right.
There has never been a need to apply for a permanent residence card in order to acquire the right of permanent residence, the card merely acted as evidence of that right. Following Brexit, however, this card may now attain a more significant status as EEA nationals in the UK will no longer, presumably, be able to rely on rights derived from EU law and this could offer some proof of the individual’s status in the UK.
The acquisition of permanent residence should be straightforward but 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”
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 and maternity leave of up to 12 months should not prevent an EEA national from applying for Permanent Residence. Where an EEA national does have gaps it will be important that these are explained and addressed. A person can also be unemployed for a period of time and still retain their worker status in EU law for a certain period of time.
What can be more complex is what is accepted as work, self employment, self sufficiency and study and who counts as a family member for the purposes of EU law. My experience has been that the department of the Home Office that processes these applications has gone from being one of the more liberal sections, to one that attempts to find reasons as to why such applications should be rejected.
To make a permanent residence application an applicant is not required to use any specified form because, as explained above, the right is an automatic one. The payment page on the Form EEA (PR) must, however, be used and the biometric pages completed if this is for a ‘third country’ national family member, i.e. a family member who is not nationals of any EEA State.
The Form EEA (PR) is a total of 85 pages and is generally considered to require the applicant to provide information that is too intrusive and appears to be designed to elicit information that can then be used to refuse applications.
The earlier form EEA3 is less intrusive and can still be used to make an application. It is this form that should be submitted with a covering letter.
The evidence required will depend upon how the Applicant has been exercising Treaty Rights i.e. whether it be by working, studying etc. Perhaps obviously, the evidence should demonstrate the exercise of Treaty Rights for the entire 5-year period. Where an application is made on the basis of a retained right of residence, then evidence that the EEA national was, for example, still working at the time of death or final divorce will be required.
This should, in most cases, be a straightforward application but it appears that the relevant Home Office department will look for reasons to refuse applications even where this is contrary to EU law. For example, the evidence specified as being required in the EEA (PR) form is reasonable whereas the evidence specified in the accompanying guidance is too onerous and in my experience has given rise to reasons that are blatantly contrary to EU law.
Unfortunately ‘Permanent Residence’ is not ‘permanent’ and it can be lost in certain circumstances. Most commonly this will be through an absence of two years, though this is not automatic. It can also be lost through criminal offending.
I sincerely hope that this Brexit decision can somehow be reversed without causing any further division. There will unquestionably be those, including lawyers, who will try to exploit this situation and I would stress again that there is no need to panic or make any impulsive decisions. What I hope is that those who are in the UK, exercising Treaty Rights and making such a significant contribution to what this country had become, will remain and that similarly talented, hardworking people will continue to arrive.
Garden Court Chambers