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EU Nationals & UK Permanent Residence: What’s the Current Position?

February 2018 - Employment. Legal Developments by DavidsonMorris.

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Permanent residence status is automatically available to European Economic Area (EEA) nationals who have lived in the UK for five continuous years and who have been exercising Treaty Rights over the whole of this period. The same criteria also apply to family members of EEA nationals.

Under current rules, it is not mandatory for qualifying EU nationals to apply for a permanent residence card as evidence of their right to reside in the UK.

It seems logical then to question why we have the permanent residence card? Why would EU citizens in particular need to pay £65 and undergo the stringent application process for documentary evidence of their permanent residence status?

There are in fact a number of reasons why EU nationals are taking the decision to apply for a permanent residence card.

1. Right to work

The PR card acts as evidence of the holder’s permission to work in the UK, which can be presented to their employer in accordance with UK Right to Work requirements.

While not a mandatory form of proof, employers can rely on PR cards as an approved form of evidence should they face Home Office scrutiny such as a civil penalty for immigration non-compliance.

2. Naturalisation

The main reason driving EU applications for permanent residence cards is where individuals are looking to subsequently naturalise as British citizens.

The British Nationality Act 1981 requires applicants for British citizenship to show they are free from immigration restrictions.

In the case of EU citizens, this means having UK permanent residence for a minimum period of 12 months before they become eligible to make a British citizenship application.

The British citizenship application process for both EEA nationals and their family members requires proof of the 12-month permanent residence. Since November 2015, this has meant providing documentary evidence of permanent residence as a mandatory requirement on EU nationals wanting to establish their status under the British Nationality Regulations for the purpose of applying for British citizenship. 

Prior to the rule taking effect, for citizenship applications where EEA applicants were without a PR card, significant demands were being placed on the UKVI caseworkers to determine the residency status of the applicants, in addition to the wider eligibility and documentary checks.

To alleviate this pressure and resulting processing delays, the requirement since November 2015 has been for EEA nationals and their family members to first hold a PR card that is submitted with their naturalisation application.

Where a British citizenship application form is submitted by an EEA national without a PR card in support, the application is expected to be rejected, and the fee lost.

The timing of applications will also need to be considered. As we have noted, the point at which an individual attains permanent residency is automatic at the 5-year stage. It is not the point at which a PR card is issued.

British citizenship eligibility requires 6 continuous years in the UK, with a minimum of 12 months under permanent residence status. For example, if permanent residence status has only been held for 6 months, the individual must wait a further six months before they can naturalise. If the 12 months has been attained prior to the permanent residence card application, the naturalisation application can follow straightaway, provided all other requirements are met.

The challenges of permanent residence applications

The eligibility criteria for permanent residence in themselves can catch many EEA applicants out. The current EU Regulations in this area are not tolerant of gaps in work history or gaps in supporting evidence. Part-time workers’ employment may not be recognised at all.

Such instances are usually dealt with by requiring the 5-year qualifying period to start again at the most recent period of continuous work. This applies even where the grounds for the gaps in work would ordinarily appear legitimate and reasonable, such as periods of caring for children, elderly or disabled, for example.

At 85 pages, completing the application form ‘EEA (PR)’ can also be challenging.

Applicants must ensure they complete all relevant sections correctly. The EEA PR guidance notes lay out the current document requirements from the Home Office. Looking specifically at EU citizens evidencing work:

  • A letter from each employer confirming the dates you/your sponsor worked for them, salary/wages, normal hours of work, and the reason the employment ended (if relevant).
  • Wage slips and/or bank statements showing receipt of wages (this must cover each job you have/your sponsor has held during the relevant qualifying period).
  • P60s for each year in which you were/your sponsor was employed.

Where these are unavailable, there may be some flexibility and alternatives; applicants are advised to seek professional support for guidance on specific circumstances.

The supporting documents are extensive and must be submitted in original form. Collating the original documents is often a time-consuming exercise, particularly where applicants have to request the documents from third parties, such as utility companies or former employers, who may be unsympathetic to the time sensitivity and nature of the cause.

Permanent Residence & Settled Status

The most recent information from the Home Office on EU citizens’ rights post-Brexit provides that permanent residence is not in itself a prerequisite to the proposed ‘settled status’.

That said, those EU nationals who have attained permanent residence are expected to benefit from a less intensive registration process in order to be granted settled status.

For EEA nationals opting to pass on applying for a permanent residence document, instead opting to wait for the new settled status system, it remains – at the time of writing at least – a matter of ‘wait and see’.

At present, the specific legal and practical details of this new system have yet to be published, although assurances of cost levels (equivalent to a new adult British passport), a two-year grace period and ‘light touch’ registration have been provided.

For the time being, under the current UK and EU rules, those EEA nationals looking to naturalise as British citizens will first have to secure the document confirming their permanent residence status.

DavidsonMorris is a firm of specialist immigration solicitors advising on all aspects of personal immigration for individuals, including British citizenship, EU naturalisation and permanent residence.