New AIT Case on Five Year Residence Requirement for Accession State Nationals
EU law has become a valuable instrument for EEA (European Economic Area) nationals and their non-EEA family members when exercising their rights to live, work and settle in the UK. However, the transposition of EU law into UK domestic law by the Immigration (EEA) Regulations 2006 has also caused confusion and concerns.
Of particular interest is the interpretation of Article 16(1) of Directive 2004/38, which states that “Union citizens who have resided legally for a continuous period of five years in the host Member state shall have the right of permanent residence there”.
Although from 3 April 2006 the residence requirement has increased from four to five years, European nationals have now an automatic entitlement to permanent residence in the UK once they have exercised their treaty rights such as working, carrying out a business, studying or being self sufficient for five years.
However, the above mentioned regulation has been applied differently to newcomers, including the Accession 8 countries (Poland, Czech Republic, Slovakia, Lithuania, Slovenia, Latvia, Estonia, Hungary) who joined the EU on 1 May 2004 and the Accession 2 countries (Bulgaria and Romania) who joined the EU on 1 January 2007.
A recent Determination issued by the Asylum and Immigration Tribunal - GN (EEA Regulations: Five years' residence) Hungary [2007] UKAIT 00073 - has clarified that “legally” Article 16(1) should be interpreted in accordance with European law and not in accordance with domestic law, the current Immigration Rules.
Therefore, although a national of an Accession country can be lawfully present in the UK, the period of residence can only commence from when his/her Member State joined the European Union, namely 1 May 2004 in the case of Accession 8 countries or 1 January 2007 for Romania and Bulgaria. This means that Accession 8 nationals will be able to benefit from Article 16(1) at the earliest in May 2009, while Bulgaria and Romania only in January 2011.
This might be open to further litigation. Gherson and Co. has experience in providing quality legal advice and representation to advise on the substantive case of whether an EEA national and his/her family might have any entitlement to remain in the UK under EU Regulations and/or UK Immigration Rules.
