In the wake of the EU referendum, approximately 3 million EEA nationals living in the UK have been left to contemplate an uncertain future. However, it has been confirmed by No. 10 that freedom of movement for EEA Nationals will end in March 2019. It remains to be seem if this happens post March 2019 remains to be seen.
Following the Home Office’s recent refusal of Dutch national Monique Hawkins’ application for Permanent Residence in the UK, many EU Nationals will be seeking advice about their right to remain in the UK. Monique Hawkins, who has lived in the UK for a period 24 years, was directed to leave the UK upon the Home Office’s refusal of her Permanent Residence application. It is likely that thousands of other long-term EEA UK residents will struggle to satisfy the requirements for Home Office recognition of a right to permanently reside in the UK.
We provide some outline information regarding the requirements for recognition of Permanent Residence below. However, if you require advice regarding your own circumstances before applying for Permanent Residence in the UK, please contact us for a free initial consultation (Telephone: 020 7998 3488; Email: firstname.lastname@example.org or email@example.com)
Recognition of a right to reside in the UK under the Immigration (European Economic Area) Regulations 2006
One of the core principles of being a member of the EU is the Free Movement of Workers between member states. This was enshrined in The Citizens’ Rights Directive 2004/38/EC (also sometimes called the “Free Movement Directive”) and defines the right of free movement for citizens of the European Economic Area (EEA), which includes the member states of the European Union (EU).
This Directive allows any EEA national and their family members the right to move to and live in another EEA Member State. To benefit from the right of Free Movement an EEA national will need to exercise their Treaty Rights. This involves being a Worker in the host country (employed or self-employed or (subject to certain limitations) a jobseeker), being a student, or being financially self-sufficient.
However, with Brexit looming, No. 10 has indicated that Free Movement will end when the UK leaves the EU. Although the Government has recently provided an indication that it will take steps to preserve the rights of EEA nationals and their families currently residing in the UK and exercising their Treaty Rights, it is – in our view – likely that political pressures to minimise net migration to the UK may lead to an overly complex and restrictive approach by the Home Office as regards the process of obtaining confirmation of a right to reside. We therefore recommend that EEA nationals and their family members residing in the UK in accordance with the Citizens’ Rights Directive, and who wish to remain here, take early action to obtain recognition from the Home Office of their right to reside.
European law imposes no obligation on an EEA national to obtain a document from the Home Office certifying a right to reside in the UK. However, the Immigration (European Economic Area) Regulations 2016 (“the Regulations”) requires the Home Office to issue such documentation upon application by an EEA national exercising freedom of movement rights in the UK, and to any qualifying family members, whether EEA nationals or non-EEA nationals residing in the UK in accordance with the Regulations.
Many EEA nationals, including Monique Hawkins, have resided in the UK for many years without any dealings with the Home Office. This begs the question, “So why apply now?”
Although no one – least of all the Government, or so it seems – knows what laws or rules will replace the Regulations, it is possible, even likely, that EEA nationals currently residing in the UK will only be guaranteed permission to continue to reside in the UK if they can evidence that they were present in the UK and exercising Treaty Rights prior to the date that the UK leaves the European Union.
If the Home Office has recognised an EEA national’s right to Permanent Residence in the UK prior to the UK’s departure from the European Union, it would, in our view, be extremely difficult for the Secretary of State for the Home Department to revoke that right to reside (save as a result of criminality or national security concerns). Therefore, the best advice for EEA nationals currently living in the UK and wishing to remain here is:
- a) If you can, apply for recognition of a right to permanently reside in the UK as soon as possible. In order to qualify for recognition of Permanent Residence, an EEA national will need to demonstrate 5 years’ continuous residence in the UK in accordance with the Regulations, i.e. as a worker, a self-employed person, a student, an economically self-sufficient person (or a combination thereof);
- b) An EEA national who has lived in the UK for less than 5 years may apply for Registration Certificate as confirmation that they are a Qualified Person under the Regulations, i.e. they are exercising freedom of movement rights. It is likely that the Government will permit EEA nationals residing in the UK in accordance with the Regulations at the date of the UK’s departure from the UK to apply for Permanent Residence once they are able to evidence 5 years’ continuous residence as a worker, student or self-sufficient person (or a combination thereof).
- It is worth noting that the 5-year qualifying period does not start from the date an EEA national is issued with a Registration Certificate. Therefore, if you have resided in the UK as a Qualified Person for the last four years, we would recommend that you apply for a Registration Certificate now (Home Office form EEA(QP)) and then apply for Permanent Residence once you have accumulated 5 years’ residence in accordance with the Regulations.
- In short, in the face of all this uncertainty, the best advice is to apply to the Home Office for document acknowledging that you are either a Qualified Person (if you have resided in the UK for less than 5 years in accordance with the Regulations) or have a right of Permanent Residence (if you have lived here as a Qualified Person for 5 years of more).
- If you’re an EEA national residing in the UK, or the non-EEA family member of an EEA national, and require advice, please call us on 020 7998 3488 or email firstname.lastname@example.org / email@example.com. We provide a free initial consultation. We are a pro-EU law firm and will do all that we can to assist.