Permanent residence: settled
The right of permanent residence given by Article 16 of Directive 2004/38 to EEA migrants and their family members who have ‘legally resided’ in another member state for five years is arguably the most striking feature of the way in which the Directive, in force since 30 April 2006, has strengthened European Union (EU) residence law. As with any new right, its exact scope has been argued in the courts. The transposition of the right into domestic law via the Immigration (European Economic Area) Regulations 2006 (SI No.1003) has caused added difficulties of interpretation in the UK.
Following the judgment of the European Court of Justice (ECJ), given on 21 December 2011, in the joined cases of Ziolkowski Case C-424/10 and Szeja Case C-425/10 v Land Berlin (hereafter Ziolkowski), it should now be possible to advise EEA nationals and their family members with some additional certainty about whether they have a case to assert that they have a permanent right of residence. However, as indicated below, there are still some points where the law is uncertain.
Permanent right to reside
A person with a permanent right to reside does not have to meet any other conditions in order to have that right – for example, s/he does not also need to be a worker or self-sufficient. Those who have such a right will satisfy the requirement that they have a ‘right to reside’ for all the benefits and tax credits which have such a test.1 They cannot be treated less favourably than a UK citizen on the basis of their nationality.
Article 16(4) provides that once it has been acquired a permanent right of residence will only cease to exist if the claimant is absent from the UK for a consecutive period in excess of two years.
Article 16(1) and (2) of the Directive provide:
‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family mem-bers who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.’
A key issue which is now further elucidated by Ziolkowski has been what types of residence count as meeting the condition of having ‘resided legally’. In that case, the question arose in the context of residence which was lawful under German domestic law (the state in which Tomasz Ziolkowski and the Szeja family resided) during a period before the claimants were EU nationals – ie, before Poland, the state of which they were citizens, joined the EU. However, the case still answers the question as to what types of residence will count in general. The key statement is at paragraph 47:
‘It follows that the concept of legal residence implied by the terms ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1).’
That means that the periods of residence which will count as meeting the condition of having ‘resided legally’ are those periods where the claimant is:
- a worker or self-employed person;
- someone who retains the status of worker/ self-employed;
- a self-sufficient person or a student who meets the self-sufficient rules; or
- a family member of any of the above persons. This probably means that periods of residence which are lawful under national law, or periods where the claimant has some other right of residence in EU law, cannot be included in calculating the five-year period.
The right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation.2 The Court of Appeal has already held that periods with such a right definitely do not count towards the five years,3 and that is binding at First-tier Tribunal and Upper Tribunal levels at present. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.
The Immigration (EEA) Regulations 2006 also provide explicitly that someone can use periods of residence where their right of residence is as a jobseeker to establish permanent residence. It is not completely clear from Ziolkowski that European law also provides for that to be the case: the right of residence for a jobseeker in EU law is located directly in Article 45 of the Treaty on the Functioning of the European Union and is implicitly provided for in Article 14 of the Directive. As the right of residence for a jobseeker is not a right found in Article 7 of the Directive, Ziolkowski would seem to militate against periods of residence as a jobseeker counting towards permanent residence (as opposed to retaining status as a worker when involuntary unemployed, which definitely can count). However, even if that is right, domestic law certainly allows residence as a jobseeker to count and so advisers can use periods from 30 April 2006 onwards4 where the claimant was a jobseeker to count. Furthermore, Ziolkowski does not explicitly state that periods of residence as a jobseeker under the Directive cannot count towards a permanent right of residence and so it may be possible to argue that they should – certainly DWP guidance pre-Ziolkowski suggested they did,5 as did a Commissioner’s case.6
Absence from the UK
Article 16(3) of the Directive provides:
‘3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.’
That makes it clear that a person’s continuity of residence, for the purposes of calculating the five-year period, cannot be affected by:
- single or multiple absences in any particular year totalling up to six months of absence; and/or
- one longer absence of up to 12 months for one of the special reasons stated (pregnancy, etc.) or a similar type of reason.
One question that then arises is whether the periods during which the claimant is absent can themselves count towards the calculation of the five years: does continuity of residence not being affected mean the clock counting the five years continues running during the absence, or is it paused until residence is resumed? In one case,7 a Commissioner held that such absences do not themselves count towards the five years. However, a more recent case8from a two-judge panel of the Immigration and Asylum Chamber of the Upper Tribunal found that a claimant acquired a right of residence after five years, even though he had been absent from the UK for about three months within that period. This case can be regarded as authority that allowable absences can be included to make up the five years. Arguably, the latter case should be preferred by First-tier Tribunals as it is a decision of two Upper Tribunal judges rather than a single Commissioner.
Periods without a right to reside
A related issue is what to make of periods of residence where the claimant remains in the UK but ceases to have a right to reside under Article 7 of the Directive. We know that a person who stops work and goes to Lisbon to look after a parent who is terminally ill for less than a 12-month period could argue that such an absence did not break her/his continuity of residence. What though of the person in the situation who goes to Liverpool to care for her/his parent rather than Lisbon? It is suggested that it is strongly arguable, that such periods in the UK where the person does not have a right of residence should be treated analogously with periods of absence (see below on the Dias case). Thus, periods in the UK of up to six months a year, and one period of up to 12 months where the claimant has no right of residence as a worker or someone who retains that status etc. should not break continuity of residence.
Periods prior to the Directive
The case of Lassal v Secretary of State for Work and Pensions Case C-162/09 established that periods of residence lawful under predecessor provisions to those now found in Article 7 of Directive 2004/38 could also count – ie, if someone was a worker/self-employed or retained those statuses, or was self-sufficient or a student or family member of any of those). Thus, someone who had already resided in the UK for five years as a worker prior to 30 April 2006 could acquire a permanent right of residence on that date as the Directive entered into force.
Lassal also considered what would happen if, having completed five years as a worker (or with a similar right) before the coming into force of the Directive, there was then a period of absence from the UK. Ms Lassal, who was French, had lived in the UK and had a right of residence as a worker from September 1999 to February 2005. However, in February 2005 she returned to France to visit her mother and remained there for 10 months. She returned to the UK and after a period on jobseeker’s allowance (JSA), she claimed income support in November 2006. The ECJ decided that such absences should be treated analogously with absences after the Directive came into force. It said:
‘absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).’
A different issue arose in SSWP v Dias Case C325/09. Ms Dias had also resided in the UK with a relevant right of residence for a five-year period before the coming into force of the Directive. However, she had then had a period, again before the Directive came into force, during which she had remained in the UK but had not been a worker, etc. or had another relevant right of residence. Had that period been after the Directive became binding, it would of course have had no effect on her permanent right of residence – those with a permanent right of residence are not required to meet any other conditions such as being a worker/selfsufficient, etc. Her difficulty was that during the period at issue she did not have a permanent right of residence (as that could only come into existence on or after 30 April 2006). The ECJ decided that her period of presence in the UK where she did not have a right of residence should be treated analogously with Ms Lassal’s period of absence. In other words, provided the period was less than two consecutive years, it would not prevent a permanent right of residence arising on the day the Directive entered into force on the basis of her earlier period of five years as a worker.
What, though, of cases where the claimant did have a right of residence for a five-year period, and then, before the Directive became binding, had a period of over two consecutive years in which s/he was either absent or had no right of residence? The decisions in Lassal and Dias were to the effect that, where such periods of absence/no right to reside were less than or equal to two years, the permanent right of residence still crystallised on 30 April 2006. The Court did not explicitly rule that a permanent right of residence would not exist if the absence was in excess of two years. It may be arguable that whether or not the right of permanent residence arises in such cases will be a question of fact.9
Residence prior to accession
The final point which Ziolkowski clears up is whether or not periods of residence by a citizen of one of the newer EU member states before her/his country joined the EU can count towards the five-year period. Clearly, during those periods the individual did not in fact have a right of residence under EU law. However, the ECJ has ruled in effect that one simply has to determine whether s/he would have had such a right in that period had s/he already been an EU national. If s/he would, then that period can count towards the five years.
‘Periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.’
In R(IS)3/08, CIS/1833/2006, CPC/2134/2007 and CPC/3764/2007, it was consistently held that EU citizens could not rely on periods of residence prior to when their states acceded to the Union. Ziolkowski means that those decisions should now not be followed on this point. An A8 or A2 national can rely, for example, on periods of work done before her/his country joined the EU to found a permanent right of residence.
Residence in less than five years
Advisers should note that it is sometimes pos-sible to obtain a permanent right of residence in less than five years (particularly for retired or permanently incapacitated former workers/ self-employed people). Unlike the five-year rule, this right has existed in EU law for many years. However, it is now expressed as a derogation to the general rule that five years’ legal residence gives rise to a permanent right. The rules about when a permanent right will arise in less than five years are outside the scope of this article, which discusses only the main rule.10
The permanent right of residence, like all EU residence rights, does not depend upon a person applying for it. A person has the right simply on the basis that s/he meets the condition of having resided legally for the five-year period. However, it may assist people in their future dealings with benefit authorities to obtain a card from the Home Office certifying the permanent right of residence. It is CPAG’s view that benefit decision makers should not attempt to look behind such a document but should accept that a permanent right of residence exists.
Thanks to Rebecca Walker, freelance trainer and writer, for comments on a draft of this article.
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- 1. Income-based JSA, IS, income-related ESA, SPC, HB, CTB, CB and CTC
- 2. Formerly Article 12 EC Regulation 1612/68, now Article 10 Regulation 492/2011 from 16/6/11
- 3. Okafor and Ors v SSHD  EWCA Civ 499
- 4. From which point a jobseeker is a ‘qualified person’ under domestic law and so has a right of residence in domestic law that can count towards reg 15(1) Immigration (EEA) Regulations 2006
- 5. DMG Memo 03/11, para 11
- 6. CIS/4299/2007 – this was the initial stage of Lassal but the point was not relevant in the later litigation as it was later agreed she was either a worker or retained that status for a five-year period.
- 7. CIS/2258/2008
- 8. Idezuna (EEA – permanent residence) Nigeria  UKUT 474 (IAC)
- 9. See the discussion at pages 339–340 of Vol II of Social Security Legislation 2011/12
- 10. See Article 17 Directive 2004/38 and reg 5 Immigration (EEA) Regulations 2006