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EU Nationals – Non-Working Spouses Cannot Automatically Obtain Permanent Residence

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By Teni Shahiean of OTS Solicitors

Let me point out something that will probably make your jaw drop. If you are a stay at home parent, who happens to be an EU national, you do not qualify for permanent residence.

That’s right. If you partner or spouse is an EU national and is working, then he or she can obtain permanent residence status and go on to apply for British Citizenship, but you cannot.

And here is the real rub. If you are a non EU citizen but you partner is an EU citizen exercising his or her Treaty rights, then you could apply for a permanent residence Card after five years, on the back of the fact your spouse or partner is working.

This little known oddity in the law has mattered little up to this point. But now that the UK has voted by a slim majority to leave the EU, those from the other 27 member states residing in Britain need to solidify their right to live in the country in case their right to reside changes following Brexit.

The reason for this strange anomaly is that for an EU citizen to obtain permanent residence status he or she must be a qualified person. Non-EU nationals who are family members or extended family members of an EU national can under certain circumstances apply for a permanent residence Card as long as the family member who is an EU national is a qualified person.

The definition of a ‘qualified person’

All EU nationals have the right to live in an EU member state for three months. After three months however, you must be a qualified person to remain. A qualified person is an EU national exercising his or her rights under The Treaty on the Functioning of the European Union (Treaty rights).

To be exercising Treaty rights as an EU national you must be either:

  • employed
  • self-employed
  • studying
  • economically self-sufficient

Those in study and the economically self-sufficient must have comprehensive sickness insurance in place (in order not to become a financial burden on the host state) before their Treaty rights are effective.

Job seekers

EU nationals who are looking for work can be classed as a qualified person under certain circumstances. You must prove that you are actively seeking work and there is a realistic chance that you will find Employment.

From the 1 July 2014, the EEA Regulations 2006 was amended to include the wording:

‘A jobseeker will be considered as exercising treaty rights or having ‘retained worker status’ in the following ways:

  • They previously enjoyed a right to reside in the capacity as a jobseeker for 6 months and found Employment or exercised another treaty rights in another way
  • The jobseeker will only be able to continue to enjoy ‘retaining worker status’ following a continuous period of absence of 12 months from the UK
  • If the jobseeker has been absent from the UK for less than 12 months they will have to prove that there is ‘compelling evidence’ of a genuine prospect of finding work from the beginning in order to benefit under the regulations as having a ‘retaining worker status’

This does not change the fact that jobseekers are still considered as ‘qualified persons’ for the purpose of their rights to reside under the EEA Regulations 2006 as amended.

Why are EU nationals who are stay at home parents excluded?

EU nationals who are stay at home parents are neither job seekers or economically self-sufficient (in most cases). To be accepted as a self-sufficient person you must be able to show you have sufficient assets and income meaning you do not need to seek social assistance under the UK benefits system.

Additionally, if an EU national who was staying at home looking after dependents was suddenly left by their spouse or partner, or their spouse or partner died, it is likely that to remain in the UK he or she would have to rely on benefits.

Non-EU family members and extended family members

Non EU family members (or third country nationals) are defined as:

  • a spouse or civil partner
  • direct descendants who are under 21 or are dependants of them or their spouse/partner, and
  • direct relatives who are dependent on them or their spouse/partner

Third country direct family members of an EU national have the right to accompany or join the EU national for as long as the EU national has a right to reside in the UK. There is a two-stage procedure for applicants who wish to come and live in the UK beyond six months. They must first apply for an EEA family permit from outside of the UK. On arrival, they must then apply for an EEA residence card. Residence card applications take significantly longer than most applications under the Immigration Rules, and there is no provision for same-day service applications via the Premium Service Centres.

What can EU nationals who are stay at home parents do to gain permanent residency?

EU nationals who are not currently exercising their Treaty rights need to start doing so in order to become a qualified person who can obtain a permanent residence card. The safest way for EU nationals to secure their right to stay in the UK, regardless of any changes of government policy following Brexit is to apply for British Citizenship. However, this can only be done if the applicant has a permanent residence card. An EU national is eligible for this after they have been exercising their Treaty rights for five years.

If you and your partner are EU nationals who have made the UK their home, it is imperative that you both take action now to ensure that your residency rights remain unchanged regardless of what happens with Brexit.

OTS Solicitors is a fully regulated, highly regarded law firm, based in the centre of London. Our solicitors are considered to be some of the best Immigration experts in the UK. We are regularly called on by the media to make comments on developments in Immigration law. To make an appointment with one of our Immigration solicitors in relation to obtaining a UK permanent residence Card or British Citizenship, please phone us on 0203 959 9123.

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