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Retired or incapacitated workers

This content applies to England

An outline of the right to reside and the eligibility for housing assistance of retired or permanently incapacitated workers and self-employed people.

Retired workers and self-employed people

European Economic Area (EEA) nationals who reach retirement age while in the UK acquire a permanent right of residence if, prior to reaching pension age or taking early retirement, they:[1]

  • worked/were self-employed in the UK for at least 12 months (or worked for at least 12 months in another EEA state but returned 'as a rule' at least once a week to their home in the UK during that time[2]), and
  • resided continuously in the UK for at least three years (periods working/being self-employed in another EEA state count towards the three years, as long as the worker/self employed person returned to the UK once a week as above).

The conditions as to the length of residence and employment do not apply to EEA nationals who are married to or in a civil partnership with a British national.[3] This means that spouses and civil partners of British citizens in these circumstances can acquire a permanent right to reside regardless of how long they worked or lived in the UK prior to ceasing work.

Family members of EEA workers/self-employed people who ceased activity in accordance with these conditions acquire a permanent right to reside in the UK provided they enjoyed a right to reside as their family members at the point the workers/self-employed people ceased activity.[4]

Retired workers/self-employed people with a permanent right of residence, and their family members, are eligible for homelessness assistance.[5]

Permanently incapacitated workers and self-employed people

EEA workers/self-employed people who have resided in the UK (residence in another EEA state qualifies so long as the worker/self-employed person returned to their home in the UK 'as a rule' at least once a week) for more than two years immediately prior to stopping work/self-employment due to permanent incapacity acquire a right of permanent residence.[6]

There is no prescribed length of time after which incapacity becomes permanent. When assessing whether incapacity is permanent or temporary, the authority should focus on a realistic prospect of the applicant returning to work within a foreseeable future - permanent incapacity may meant that a person is unlikely to work in the foreseeable future.[7] In one case, it was held that it is possible for incapacity to be temporary at one point in time and permanent later.[8]

The two-year residence requirement does not apply if:

  • the reason for permanent incapacity is an accident at work or an occupational disease that would entitle the sufferer to an occupational pension,[9] or
  • the EEA national is married to or is a civil partner of a British national.[10]

Family members of EEA workers/self-employed people who ceased activity in accordance with these conditions acquire a permanent right to reside in the UK provided they enjoyed a right to reside as their family members at the point the workers/self-employed people ceased activity.[11]

Permanently incapacitated workers/self-employed people with a permanent right of residence, and their family members, are eligible for homelessness assistance. [12]

The acquisition of a right to reside following stopping work because of permanent incapacity applies equally to Accession state nationals. See A8 nationals for details.

Actual or lawful residence?

Unlike in the case of a permanent right to reside acquired through five years of residence, factual rather than legal residence is sufficient for a worker or self-employed person to acquire a permanent right to reside following retirement or permanent incapacity, provided the relevant (self-)employment conditions are satisfied.[13]

Periods of economic inactivity

Periods of economic inactivity must be treated as periods of activity as a worker or self-employed person, as the case may be, where:[14]

  • the inactivity is for reasons not of the person's own making
  • the inactivity is due to illness or accident
  • in the case of a worker, involuntary unemployment is duly recorded by the relevant employment office.

An EEA worker/self-employed person unable to work as a result of illness or accident will be temporarily unable to work if her/his inability to work is not permanent.[15] Time spent by an EEA worker in a secure psychiatric hospital due to a hospital order made under the Mental Health Act 1983 was inactivity due to illness (a psychiatric disorder) and counted as a period of lawful residence for the purpose of acquiring permanent residence.[16]

For more information about periods of economic inactivity during which worker or self-employed status can be retained, see the pages on EEA workers and self-employed EEA nationals.

Working/self employed in another EEA state

An EEA national (and her/his family members) who works/is self-employed in another EEA state acquire a permanent right of residence in the UK if s/he:[17]:

  • returns to her/his home in the UK as a rule at least once a week, and
  • has/had been continuously working/self-employed and continuously residing in the UK for three years immediately before working/being self-employed in the other EEA state.

Permanent right to reside under more than one provision

When an EEA worker/self-employed person is entitled to a permanent right to reside in the UK under more than one legal provision, for example as a permanently incapacitated worker/self-employed person as well as for having completed lawful Five years' residence, s/he may rely on whichever is the most favourable provision to her/him.

In one case, it was held that the position of a EEA national who had acquired a right of permanent residence as a result of permanent incapacity was not affected by his subsequent completion of a five-year period of continuous residence. His non-EEA national wife therefore did not have to fulfil the more onerous requirement of residing with the EEA national for five years in accordance with the Immigration (EEA) Regulations in order to acquire her own permanent right to reside.[18] For more on the meaning of 'residing in accordance with the Immigration (EEA) Regulations', see the page Five years' residence.

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. Contact Shelter Cymru for more information about the law in Wales.

[1] regs 5(2) and 15(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[2] reg 5(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[3] para 2, Article 17(2) Directive 2004/38/EC; reg 5(6) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[4] reg 15(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[5] reg 6(2)(e) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[6] regs 5(3)-(5) and 15(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2019 SI 2019/1155.

[7] Prefeta (Accession - Freedom of movement for persons - Judgment) [2018] EUECJ C-618/16; Konodyba v Kensington and Chelsea RLBC [2012] EWCA Civ 982; Samin v Westminster CC [2012] EWCA Civ 1468; BL v SSWP (ESA) [2019] UKUT 364 (AAC).

[8] SSWP v LM [2017] UKUT 485.

[9] Article 17(1)(b) Directive 2004/38/EC; reg 5(3)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[10] Article 17(2) Directive 2004/38/EC; reg 5(6) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[11] reg 15(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[12] reg 6(2)(e) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[13] Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31; Secretary of State for Work and Pensions v NZ (ESA) (Final decision) [2019] UKUT 250 (AAC).

[14] reg 5(7) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[15] FMB (EEA Regulations - reg 6(2)(a) - temporarily unable to work) Uganda [2010] UKUT 447 (IAC); De Brito v Secretary of State for the Home Department [2012] EWCA Civ 709.

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

[17] regs 5(4) and 15(1)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2019 SI 2019/1155.

[18] RM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 775.

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