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

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. 

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