EEA nationals permanent right to reside after five years of lawful residence

EEA nationals could obtain a permanent right to reside in the UK after five years of lawful and continuous residence.

This content applies to England

Eligibility rules before and after January 2021

Before 1 January 2021 these rules applied to EEA nationals and their family members who were exercising EU free movement rights in the UK.

After 1 January 2021 these eligibility rules continue to apply to EEA nationals and their family members who have either:[1]

The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

Eligibility of EEA nationals with permanent right to reside

EEA nationals and their family members who had resided lawfully in the UK for a continuous period of five years automatically acquired a permanent right to reside in the UK and were eligible for homelessness assistance, provided they were habitually resident in the Common Travel Area.[2]

For extended family members of EEA nationals, the qualifying period of five years’ lawful residence was calculated from the day they were issued with a EEA residence card or certificate.[3]

Non-EEA family members of EEA nationals automatically acquired a permanent right to reside after residing lawfully with the EEA national in the UK for a continuous period of five years.[4]

Continuity of residence

Continuity of residence was not affected by:[5]

  • up to six months absence from the UK in any period of 12 months

  • any period of absence from the UK on military service

  • any absence from the UK not exceeding 12 months for an 'important reason', such as pregnancy and childbirth, serious illness, study, vocational training or an overseas posting

The courts held that a break in immigration status during the five year period disturbed continuity of residence. 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, so she did not acquire a permanent right to reside despite residing in the UK for five years.[6]

Continuity of residence was broken, and the five years' period was reset from the start, when a person:[7]

  • served a prison sentence

  • was the subject of a deportation or exclusion order

  • was removed from the UK under the Immigration (European Economic Area) Regulations

Periods spent in prison did not count towards the five-year qualifying period for the permanent right to reside.[8] 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.[9]

Lawful residence

Lawful residence for the purpose of acquiring a permanent right to reside meant residence in accordance with the Immigration (European Economic Area) Regulations and which satisfied all the conditions laid out in the Citizenship Directive.[10]

Under the Immigration (European Economic Area) Regulations as in force on 31 December 2020, EEA nationals had a lawful right to reside, and were 'residing lawfully', if they were in the UK as a:[11]

Periods of residence in the UK solely as a result of the derivative right of residence did not constitute lawful residence for the purposes of acquiring a permanent right to reside.[13]

Residence before 30 April 2006 or before accession

Periods of lawful residence counted towards the five-year period needed for a permanent right to reside even when they were:

  • prior to 30 April 2006 – the UK implementation date for Directive 2004/38/EC[14]

  • by nationals of a non-EU country before their country joined the EU[15]

Residence permits issued before April 2006

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.[16] 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.[17]

Asylum seekers before their country joined the EU

If a person's status in the UK before their country joined the EU was as an asylum seeker, that period of residence did not count towards the qualifying five-years period for permanent residence, even if they had worked or been self-employed after obtaining permission to work from the Home Office.[18]

Loss of permanent right to reside

Once acquired, the right of permanent residence could be lost if EEA nationals were absent from the UK for over two consecutive years.[19]

For the purpose of calculating the qualifying period of five years' continuous lawful residence, periods of lawful residence prior to 30 April 2006 or accession to the EU could be lost if:

  • the person was absent from the UK for over two consecutive years[20]

  • there was a subsequent continuous two-year period before 30 April 2006 (or accession) when the person lived in the UK but was not 'residing lawfully', for example was serving a prison sentence of two years or more[21]

Last updated: 18 February 2021

Footnotes

  • [1]

    see the The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309 and The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

  • [2]

    Article 16 Directive 2004/38/EC ('Citizenship Directive'); regs 15(1)(a) and 15(1)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; reg 6(1)(a) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

  • [3]

    Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558, [2019] 1 WLR 365; Secretary of State for the Home Department v Jefferey Aibangbee [2019] EWCA Civ 339; Kunwar (EFM - calculating periods of residence) [2019] UKUT 63 (IAC).

  • [4]

    reg 15(1)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; MS v SSWP (ESA) [2020] UKUT 235 (AAC).

  • [5]

    reg 3(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [6]

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

  • [7]

    reg 3(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; 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.

  • [8]

    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.

  • [9]

    Article 16 Directive 2004/38/EC ('Citizenship Directive'); regs 15(1)(a) and 15(1)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301; Cardiff CC v HM (HB) [2019] UKUT 271 (AAC).

  • [10]

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

  • [11]

    regs 6 and 7 Immigration (European Economic Area) Regulations 2016 SI 2016/1052; GE v SSWP (ESA) [2017] UKUT 145 (AAC).

  • [12]

    reg 4(1)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [13]

    reg 15(2) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; 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.

  • [14]

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

  • [15]

    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.

  • [16]

    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.

  • [17]

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

  • [18]

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

  • [19]

    reg 15(3) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [20]

    para 8(4), sch.6, Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [21]

    Secretary of State for the Home Department v Franco Vomero [2019] UKSC 35; Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807; Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13.