In the wake of Brexit and the subsequent decision by Britain to leave the EU the Home office has seen an influx of EEA nationals seeking to apply for permanent residence. In fact, I myself have found many EEA nationals seeking advice about how to go about applying for permanent residence (which I may add is a prerequisite for British Citizenship).
However, what I have noticed is that many do not qualify to do so. I have had a number of people come to me with, “I made an application for permanent residence but my application was rejected, I do not understand, I have lived in the UK for more than five years”.
Yes, European nationals are privy to free movement however their movement is governed by Directive 2004/38/EC, commonly referred to as the Citizens’ Directive. The second is the UK’s implementation of the Directive, which is The Immigration (European Economic Area) Regulations 2006 thus making Permanent residence subject to conditions.
What is Permanent UK Residence?
Permanent residence is a right afforded to a person from the EU or their family members to live permanently in a Member State irrespective of whether they are exercising Treaty rights as a worker, self-employed person, student, self-sufficient person or family member of one of these categories.
Prior to acquiring permanent residence, a person is only considered a qualified person if they are exercising treaty rights and depend on being a qualified person to remain here lawfully however having permanent residence protects your entitlement to remain and reside in the UK regardless.
I have lived continuously for five years, lived, worked and studied, my application was still refused
- You may have lived continuously for the specified period but were you a qualified person throughout that period?
The right of residence is held by a person who is exercising Treaty rights, which means engaging in one or more of the following:
- self employment
- self sufficiency and
Gaps in employment are permitted in some circumstances and a person who is unemployed may still retain their worker status for a certain period however you must provide evidence. It does not matter how you have been a qualified person for the five years to qualify. So for example during a five-year period as an EU citizen you may have been first a student, then unemployed for a few weeks, a worker and then possibly even self-employed, and possibly still qualify for permanent residence.
Common misunderstandings pertaining to Students and Self Sufficient persons
If you are relying on a period where you were a student or self-sufficient to qualify for permanent residence did you have “comprehensive sickness insurance”?
I have had many people come to me concerned as to why their application was refused for not having the insurance or hearing my advice that they cannot apply because they do not or did not have comprehensive sickness insurance.
Comprehensive sickness insurance is basically private medical insurance which must be obtained to cover your time here in those categories.
It is therefore so incredibly important that if you are in the UK as a student or self-sufficient person you obtain the most comprehensive sickness insurance possible which covers everything from emergency care to family members.
Continuous residence as a qualified person, does that mean I can rely on any period of continuous period of five years to prove I have permanent residence?
Permanent residence is an automatic right that operates by law therefore if you have been living in the United Kingdom for more than 5 years and you find that in the last 12 months you have been unemployed or you have lived out of the UK for a period it does not mean you do not hold permanent residence.
In fact, even though permanent residence was only introduced on the 30th April 2006 as a right by the Citizens Directive, earlier periods of residence under previous EU law provisions can have created a right of permanent residence. So it is important to look at any period you have been in the UK continuously as a qualified person as you may find you already have permanent residence.
But having said that permanent residence may be lost in certain circumstances, if for example you have been absent from the UK in excess of two years.
Is it necessary to apply for permanent residence?
If you have lived continuously for five years as a qualified person exercising your Treaty rights and qualify under the Citizens’ Directive you will have automatically qualified for permanent residence. There is no need to apply for a permanent residence card in order to attain the right of permanent residence however if you are looking to apply for
British Citizenship the guidance makes it a prerequisite before applying and in the wake of Brexit and the very real prospect of the UK leaving Europe you may want to choose to apply for a permanent residence card for convenience purposes and in order to prove that you hold the right.
There is no doubt that attaining permanent residence can be quite complicated in some cases, especially if there are breaks in employment or periods of Self-employment, low earnings or more commonly periods of being self-sufficient or a student without comprehensive sickness insurance.
For more information on Permanent residence and whether you are considering applying or need assistance in applying please feel free to contact us where will be more than happy to assist.
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