EEA permanent residence card. On 29 March 2017, British Prime Minister, Theresa May triggered Article 50, officially notifying the European Council of the UK’s intent to leave the European Union. Since the EU referendum in June 2016, many Europeans living in the UK feel their futures are suddenly uncertain. Theresa May has made ambiguous promises in regards to the rights of EU nationals currently living in the UK, whilst hinting that this will ultimately depend on the rights of British citizens living in other Member States. This has led European nationals to feel that their residence is being used as a bargaining chip in the upcoming negotiations. There has undoubtedly been a lack of certainty about both the economic impact of this decision and the impact on free movement and since this will be the first point of negotiation in the coming months there is much anxiety among European nationals.

Currently, we are advising every EEA national and their family members to apply for documentation which proves their right to residence. In the case of European nationals who have resided in the UK for less than five continuous years and are exercising their treaty rights at the time of application, this will be a Registration Certificate. For non EEA nationals who are family members, having lived in the UK for less than five years this is known as a Residence Card. This article will focus particularly on European nationals who have acquired Permanent Residence and will outline what you need to know when going through this process

Under the current regulations, EEA nationals who have been exercising their Treaty Rights in the UK will automatically acquire Permanent Residence status after living for five continuous years. This means that under the law, you will become a Permanent Resident automatically, without needing to apply for any documentation. For this reason, many European nationals have never applied or needed to apply for such documentation.

Unfortunately, since the referendum this may no longer be the case and with the future of these regulations and rights being subject to debate, we are advising this application is made as soon as possible.

With this in mind, there has been a natural increase in these applications. However European national who are applying for EU Permanent Residence Cards are discovering that the process may not be as straightforward as it appears

In general terms, the four requirements needed for acquiring Permanent Residence status are:

• The applicant is an EEA national (or a family member of an EEA national)
• The EEA national is exercising his or her treaty rights
• The EEA national has lived in the UK for five consecutive years, without a break in their residence.

Let’s break down the requirements.

Treaty rights

Every EEA national has to be exercising their Treaty rights for a period of five consecutive years. This means that an EU citizen must be either:

• working;
• self-employed;
• self-sufficient; or
• studying

Five continuous years

You need to have lived lawfully in the UK for five continuous years whilst exercising your treaty rights. Absences of up to six months will not be considered a break in your residence and generally won’t affect your right to Permanent Residence status. Your stay in the country must be lawful, and this requirement can extend beyond just exercising your Treaty rights. For example, if you are living in the UK as a self-sufficient person or a student, you must also have comprehensive sickness Insurance to cover the entire period you are relying on. In these cases, this is the main reason for the refusal of an EEA Permanent Residence Card application. Refusals also commonly occur where an EEA national has criminal convictions, however this depends on the circumstances of each individual case.

An EEA Permanent Residence Card does not grant any new rights; it is simply a document confirming your already existing right to reside in the UK. Prior to Brexit, most EEA nationals living in the UK never bothered to apply for any documentation from the Home Office because they never needed to. In the coming negotiations, this could all change. The negotiations which have now begun will mean that we are still part of the European Union for the coming two years. However, changes may still be made in the meantime which could affect European nationals.

An example of this, was the rule change in November 2015 when the UK government quietly passed a law stating that EEA nationals who wanted to obtain British Citizenship must have an EEA Permanent Residence Card before they apply. Understandably, many Europeans are seeking British citizenship now that the UK is officially leaving the EU to secure their rights and for their own peace of mind. This is no longer possible without an EEA Permanent Residence card.

A recent report by the Liberal Democrats revealed that 28% of EEA Permanent Residence Card applications were rejected in the last two-quarters of 2016[1]. It currently takes between up to six months for the Home Office to make a decision on EEA Permanent Resident Card submissions, so delays can result in many more months of frustration and uncertainty and there is a risk of becoming subject to changes in the regulations.

The application process may sound simple in theory, but can be very daunting and time consuming in practice. The application form itself is 85 pages long, and the available Home Office guidance is confusing and unclear. It can be difficult to understand how the regulations themselves apply in certain cases and new services are introduced which EEA nationals may not be aware of, such as the possibility to apply online and the passport back service. It is always advisable to consult an expert on immigration law to help make the application process smoother. The Home Office advises a cover letter to accompany applications where there are elements that need to be explained and a lawyer has the knowledge and experience to know exactly what the Home Office want to see and how the law may be applied to your personal circumstances.

Not only this, but instructing an immigration lawyer can save you time, both during the application process itself and afterwards by minimising the risk of refusal. An application submitted incorrectly, even for a minor reason can cost you six months or more.

Many people living in Britain, Europeans and British citizens alike, are feeling nervous and uncertain about what the future holds. EEA nationals, whose rights following Brexit are not yet guaranteed, are understandably upset and frustrated. Obtaining an EEA Permanent Residence card is a big step towards securing your rights to reside in the UK, giving you the means to prove this right and secure your future and the future of your loved ones.

Saracens Solicitors is a multi-service law firm based opposite Marble Arch on the North side of Hyde Park in London. We have years of experience in immigration law and can assist you with applying for an EU Permanent Residence Card and/or British Citizenship. For more information, please call our office on 020 3588 3500.

[1] https://www.theguardian.com/uk-news/2017/feb/27/rejections-eu-citizens-seeking-uk-residency