This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Five years' residence

This content applies to England & Wales

Information on how an EEA national can obtain a permanent right to reside in the UK after an extended period of lawful residence.

An EEA national (and her/his family members) who have resided lawfully in the UK for a continuous period of five years automatically acquires a permanent right to reside in the UK [1] and is eligible for assistance as a homelessness applicant.

Although there is no requirement to do so, a person who has acquired a permanent right to reside in the UK can apply to the Home Office for a permanent residence document certifying her/his right (see The right to reside for more about residence documents).

Lawful residence

Lawful residence for the purpose of acquiring a permanent right to reside means residence in accordance with the Immigration (European Economic Area) Regulations and which satisfy all the conditions laid out in Directive 2004/38/EC (the Citizenship Directive).

Continuity of residence

Continuity of residence is not affected by:[2]

  • up to six months absence from the UK in any period of 12 months
  • any period of absence from the UK on military service, or
  • any absence from the UK not exceeding 12 months for an 'important reason', such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

However, a break in immigration status during a five year period will disturb continuity of residence, so where the daughter of a qualifying EEA national ceased to qualify as a family member for a period of four months for failing to meet the 'dependency' condition when she was over 21 years of age, she did not acquire a permanent right to reside despite residing in the UK for five years.[3]

Continuity of residence is broken, and the five years' period reset from the start, when a person:[4]

  • serves a prison sentence
  • is the subject of a deportation or exclusion order, or
  • is removed from the UK under the Immigration (European Economic Area) Regulations.

Periods spent in prison do not count towards the five-year qualifying period for the permanent right to reside.[5] In contrast, a period of detention in a secure psychiatric hospital following a hospital order made under the Mental Health Act 1983 was inactivity due to illness (a psychiatric disorder) and counted towards the qualifying period for permanent residence.[6]

Non-EEA family member

A non-EEA family member of an EEA national automatically acquires a permanent right to reside if s/he has resided lawfully with the EEA national in the UK for a continuous period of five years.[7] See Family of workers and self employed for details.

Persons with lawful right to reside

Under the Immigration (European Economic Area) Regulations, an EEA national has a right to reside, and is therefore 'residing lawfully', if s/he is in the UK as a:[8]

  • person in their initial three month right to reside (as long as they do not become an unreasonable burden on the social assistance scheme of the UK in that period)
  • jobseeker (whether or not s/he has ever worked at all in the UK)
  • worker or person who has retained worker status
  • self-employed person
  • self-sufficient person, who has comprehensive sickness insurance[9] (see Persons ineligible for assistance for the definition of 'self-sufficient')
  • student, who has comprehensive sickness insurance and is self-sufficient
  • family member of the above.

Derivative right of residence

Periods of residence in the UK solely as a result of the derivative right of residence do not constitute lawful residence for the purposes of acquiring a permanent right to reside.[10] See The right to reside for more about the derivative right to reside.

Residence before 30 April 2006 or before accession

The European Court of Justice has held that periods of lawful residence count towards the five-year period needed for a permanent right to reside when they were:

  • prior to 30 April 2006 - the UK implementation date for EC Directive 2004/38[11], or
  • by a national of a non-EU state before that state joined the EU.[12]

Lawful residence in this context means that the person had leave to enter and remain and s/he resided in the UK as a:

  • worker or person who has retained worker status
  • self-employed person
  • self-sufficient person, who has comprehensive sickness insurance
  • a student, who has comprehensive sickness insurance and is self-sufficient
  • a family member of the above.

Residence permit

Prior to 30 April 2006, a member state had to issue a residence permit, valid for at least five years, as proof of the right of residence of an EEA worker.[13] Residence whilst holding a residence permit did not amount to lawful residence for the purpose of acquiring a permanent right of residence unless the EEA national also met the conditions for lawful residence.[14]

Asylum seekers

If the person's status in the UK before their country acceded to the EU was as an asylum seeker, then that period of residence will not count towards the qualifying period for permanent residence, even if s/he had worked or been self-employed having after being given permission to work by the Home Office.[15]

A8, A2 and Croatian nationals

In order to establish if an A8, A2 or Croatian national has acquired a permanent right to reside in the UK, it is necessary to establish whether employment carried out when the registration/authorisation schemes operated complied with the requirements of the relevant scheme.  For details see the pages A8 nationals, A2 nationals and Croatian nationals.

Normally any employment by a A8, A2 or Croatian worker for a period when s/he required registration/authorisation and did not have it, will not be lawful residence.[16] However, in one case the Upper Tribunal held that adhering strictly to this positiont would result in the disproportionate denial of a permanent right to reside to a Polish national who had failed to register any of his periods of employment for the duration of the Worker Registration Scheme for A8 nationals. The relevant factors included his long period of residence and regular employment in the UK, earlier awards of jobseeker’s allowance, a clear intention to settle here and that he had worked legally in the UK prior to Poland’s accession to the EU (he only left at that time to avoid a period of illegal work following the expiry of his visa).[17]

Loss of permanent right to reside

Once acquired, the right of permanent residence can be lost if that person is absent from the UK for over two consecutive years.[18]

A permanent right to reside based on periods of lawful residence prior to 30 April 2006 or accession to the EU can be lost if:

  • the person is absent from the UK for over two consecutive years[19]
  • there was a continuous two-year period before 30 April 2006 (or accession) when the person lived in the UK but was not in lawful residence.[20]

In one case, the court held that a period of imprisonment in the UK that occurred before 30 April 2006 and lasted over two years meant that the permanent right of residence was lost.[21]

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. See Homelessness in Wales or visit Shelter Cymru for more information about the law in Wales.

[1] reg 15 Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 15 Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[2] reg 3(2)  Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 3(2) Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[3] Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301.

[4] reg 3(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 3(3) Immigration (European Economic Area) Regulations 2006 SI 2006/1003 and Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406, Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12, Warsame v Secretary of State for the Home Department [2016] EWCA Civ 16.

[5] Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406; Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12; Warsame v Secretary of State for the Home Department [2016] EWCA Civ 16.

[6] JO (Qualified person - hospital order - effect) Slovakia [2012] UKUT 237 (IAC).

[7] reg 15(1)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 15(1)(b) Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[8] regs 6 and 7 Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 6 and 7 Immigration (European Economic Area) Regulations 2006 SI 2006/1003; GE v SSWP (ESA) [2017] UKUT 145 (AAC).

[9] reg 4(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 4(1)(c) Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[10] reg 15(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 15(1A) Immigration (European Economic Area) Regulations 2006 SI 2006/1003 as inserted by Immigration (European Economic Area) (Amendment) Regulations 2012 SI 2012/1547; Alarape and another v Secretary of State for the Home Department [2013] EUECJ C-529/11; Okafor and others v Secretary of State for the Home Department [2011] EWCA Civ 499.

[11] para 8, sch. 6, Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Secretary of State for Work and Pensions v Lassal [2010] EUECJ C-162/09.

[12] para 8, sch.6, Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Ziolkowski (Freedom of movement for persons) [2011] EUECJ C-424/10; see also Memo DMG 18/12, Department for Work and Pensions, April 2012.

[13] articles 4 and 6 Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.

[14] Secretary of State for Work and Pensions v Dias [2011] EUECJ C-325/09; see also Memo DMG 23/11, Department for Work and Pensions, September 2011.

[15] Secretary of State for Work and Pensions v LS (IS) [2012] UKUT 207 (AAC).

[16] Zalewska v Department for Social Development [2008] UKHL 67.

[17] JK v Secretary of State for Work and Pensions (SPC) [2017] UKUT 179 (AAC).

[18] reg 15(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 15(2) Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[19] para 8(4), sch.6, Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, para 6(4), sch. 4, Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[20] Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807.

[21] Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13.

Back to top