Right to reside for EU nationals – practical steps to take

Matthew Davies a Partner in our Immigration Department, outlines practical steps that EU nationals can take to secure their right to reside in the UK following the triggering of Article 50. Any EU national who has lived in the UK for 5 years or more may qualify for a Permanent Residence Card.  Once issued with a Permanent Residence Card an EU national may be able to naturalise as a British citizen and obtain a British passport. To qualify for a Permanent Residence Card an EU national will need to show that during a 5 year period they have resided in the UK as a “qualified person” in one or more of the following categories;

• A worker
• A job seeker
• A self-employed person
• A student
• A self-sufficient person
• A person who has a retained the right of residence in specified circumstances

The rules on how you qualify under one of these categories are quite complex and you should read the Home Office guidance. Family members of an EU national, including spouse and children aged under 21, can qualify for a Permanent Residence Card if they have lived in the UK as the family member of the “qualified person” for five years. They can be included in the application of the “qualified person”. To apply for a Permanent Residence Card you need to complete form EEA(PR). Before completing your application for permanent residence you should read the EEA(PR) guidance which sets out the documents you will need to provide to prove that you have resided in the UK  as a qualified person for 5 years. You can apply either by completing the paper form and submitting it to the Home Office or completing an online form. The fee is £65 per person. You can send your supporting evidence to the Home Office by post or if you apply online you can submit your evidence in person using the European passport return service. Applications are currently being processed fairly quickly, some within a month or two. These applications can be straightforward but they can also be complex depending on your circumstances. Note in particular;

• If you are relying on any time as a student or a self-sufficient person you need to have had in place comprehensive sickness insurance.
• Many EU nationals will have lived in the UK for many years.  You need to identify which 5 year period you want to rely on. It is best to choose a 5 year period that starts at least 6 years ago so that if your application is successful you will be able to apply immediately to naturalise as a British citizen.
• If you have children born in the UK the date you acquired permanent residence (the end of your chosen five year period) may be relevant to whether your child is born British or has a right to register as British.
• Nationals of various East European  countries may have needed to register under the Worker Registration Scheme if they came to the UK before 2011 and if they failed to register under the scheme they cannot rely on that period.
• If you have been a worker but have received a very low income it may not be accepted by the Home Office that you qualify as a worker.
• If you were on maternity leave and returned to employment within one year you continue to be treated as a worker whilst on maternity leave. If you did not return to work you may have to rely on self-sufficiency and need comprehensive sickness insurance unless your partner is  an EU “qualified person”
• If you have been a job seeker for more than 6 months the Home Office may not accept that you were a “qualified person” after the first six months of job-seeking.
• If you have been self-employed but earned little or made a loss the Home Office may not accept that you have been self-employed, particularly if you have not made a tax return or registered to pay National Insurance Contributions.

Once you have been issued with a permanent Residence Card you can usually apply to naturalise as a British citizen 12 months from the date that you acquired permanent residence (the date will be written in the letter that you receive from the Home Office), or immediately if you are married to a British citizen. You need to meet a residence requirement, a good character requirement, pass a Life in the UK Test and an English test. The application form is called Form AN and you should read the guide and booklet that accompanies the form before making an application. The current fee is £1,236. Children who may be entitled to register as a British citizen complete Form MN1  and children who were born in the UK and have lived here for 10 years of their life complete Form T. The current fee is £936. If your child was born British they apply for a British passport in the usual way. The Rules and Regulations surrounding these applications are complex and if you are in any doubt as to whether you or your children qualify you should seek advice.

If you are concerned or affected by this issue and would like to discuss this further you can contact Matthew directly at m.davies@wilsonllp.co.uk. To make an appointment for a consultation with Matthew or any other member of our Immigration Team contact Dionne on 0208 885 7979 or e mail the nature of your query to  immigration@wilsonllp.co.uk and a member of our team will get back to you quickly. We have members of our team who speak Spanish, Italian, German, French, Greek, Portuguese, and Swedish. Just ask if you would like to speak to one of these lawyers.