Permanent residence - EU Parliament admits petition challenging EEA Regs

Updated by Gherson on Thursday 5 June 2008. | | | | | |

The European Parliament’s Commission on Petitions has decided that a petition questioning the correctness of the United Kingdom’s “transposition” of Article 16 of Directive 2004/38/EC (the “Citizens’ Directive) is admissible.   Article 16 of the Citizens’ Directive gives nationals of the European Union  the right to reside permanently in member states in which they have resided for five years. “EEA nationals” (nationals of the European Economic Area) are citizens of the European Union as well as nationals of Norway, Iceland, Liechtenstein and Switzerland.

The issue concerns the words used in the Citizens’ Directive compared with those used in the legislation which implemented the Directive into UK law.  

Article 16 (1) of the Citizens’ Directive states:

“1. 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.”

In the UK the Directive is “transposed” by the Immigration (European Economic Area) Regulations 2006 (“the Regulations”). The Regulation relating to permanent residence is Regulation 15. Regulation 15(1)(a) is as follows:

"15. - (1) The following persons shall acquire the right to reside in the United Kingdom permanently -

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years."

Obviously the 2006 regulations have only been in force since 2006 – so at present no one can have been residing in the UK for a continuous period of five years “in accordance with these Regulations”.   But the transitional provisions at paragraph 6 of Schedule 4 to the Regulations state:

"Periods of residence under the 2000 Regulations

6(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations."

What happens if someone came to the UK with leave to remain (say as a student or as the holder of a work permit) and has recently completed a period of leave to remain amounting to five years, but the country of which they are a citizen itself only became a member state of the European Union less than five years before the completion of that period?

Back in August of 2007 we reported the Asylum and Immigration Tribunal’s determination in GN (EEA Regulations: Five years' residence) Hungary [2007] UKAIT 00073.  In that case the Appellant GN, a national of Hungary, had come to the UK as a student in 1997.  After he completed his studies he applied for a work permit under the Worker Registration Scheme .  Thereafter he successfully applied for a residence permit as a “qualified person” which did not expire until February of 2011.  

Regulation 18 of the Regulations requires the Secretary of State to issue a “document certifying permanent residence” to someone who applies to him or her for one and provides the necessary proof that he or she has the right to permanent residence.  GN applied and was refused by the Secretary of State, who said that since Hungary had only been a member state of the European Union since 2004 GN could not say that he had been residing in the UK “in accordance with these regulations” for a period of five years.  This phrase required a successful applicant to have been in one of the categories set out  in Regulation 4 (a worker or a self employed person exercising rights to free movement).  The rights to free movement only applied to EEA nationals, and GN had not been an EEA national before 2004.

GN  appealed to the Asylum and Immigration Tribunal against the refusal.  He won his case but the Secretary of State got the  decision overturned on reconsideration.  Interestingly the Tribunal was referred by GN, who represented himself, to:

“a letter, apparently written on behalf of a member of the European Commission, giving a view which is specifically stated as not to be authoritative or binding that "since the Directive does not provide for the condition that the five year residence has to be ' on the basis of the Directive' this notion should cover also those persons who have recently become Union citizens and have legally resided in the UK for five years, otherwise such persons would have to wait for five years from the acquisition of citizenship of the Union, which would be an additional condition not foreseen in the text."

GN’s argument, supported by the letter from the European Commission, was that he had legally resided in the UK since 1997.  The fact that that Hungary had not been a member state of the EU until 2004 was irrelevant.  Article 16 of the Directive required no more than that he had resided “legally” in the UK for a period of 5 years, and he had done so.  He referred to paragraph 17 of the preamble to the Directive, which says:

"17. Enjoyment of permanent residence by Union citizens who have chosen to settle long-term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure."

GN’s point was that the objectives referred to in this paragraph were frustrated by the narrow interpretation of the Directive as it was transposed in the Regulations.  

The Tribunal did not agree.  It stated that the word “legally” as it appeared in Article 16 of the Directive referred not to the lawfulness or otherwise of an EU national’s residence in a member state under the law of that member state, but instead it meant “in accordance with European law”. In the Tribunal’s view this interpretation was supported the words “in compliance with the conditions laid down in this Directive” contained in recital 17 of the preamble to the Directive.  

The Tribunal’s determination in GN (Hungary) has remained, since its promulgation in August of 2007, the Tribunal’s authoritative statement on when the right to permanent residence can be acquired.  

In his initial response to the petition (which was made by a Hungarian man who had resided in the UK since 1997) the Head of the  European Commission's  Citizenship and fundamental rights Unit said, regarding recital 17 of the Directive :

“The two conditions (condition of residence and condition of being an EU citizen) do not necessarily have to coexist at the same time.  The right of permanent residence should therefore be granted to all persons who are EU citizens at the moment when they claim the right of permanent residence provided that they have resided continuously in the host Member State for five years in compliance with conditions laid down in Article 7 (1) of the Directive, and that they were EU citizens at that period of time.

An interpretation of Article 16 of the Directive ipso iure excluding the periods of residence acquired before the accession of the Member State of nationality to the European Union would appear to be contrary to Community law”

The Commission then contacted the UK Borders Agency.  The UKBA’s response was in these terms:

“to qualify under Regulation 15 of the EEA Regulations 2006 (permanent right of residence) an individual would need to be living in accordance with the Regulations for a continuous period of 5 years.  Those applying for permanent residence on the basis of being an EEA national must show that they have been living in accordance with the Regulations for 5 years as an EEA national.  Time spent in the UK prior to becoming an EU citizen cannot be considered as time spent under terms of Directive 2004/38/EC or its predecessors.”

The Committee on Petitions’ decision on the admissibility of the petition is dated 27 May 2008.  What happens next is very much up to the Committee on Petitions.  By rule 192 of the Rules of procedure of the European Parliament it can, among other things,

•    prepare “a report or otherwise express its opinion on petitions it has declared admissible”, or

•    “submit motions for resolutions to Parliament on petitions which it has considered” or

•    “request that its opinions be forwarded by the President to the Commission or the Council.”

The letter from the Committee indicates that the Petition has been sent to the UK Permanent Representation “for an opinion or further action”.   Plainly one way of bringing the matter to a close would be for the UK to amend the Regulations so that time spent lawfully in the UK prior to the accession of an individual’s member state to the EU would count towards the qualifying period for the right to permanent residence.

Potentially this is a highly significant development.  There are many people who have lived lawfully in the UK and whose home country has then acceded to the European Union during that period of residence in the UK.  These include all the nationals of the 8 European countries  (the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia), which acceded to the European Union in 2004.  The UKBA calls these people Accession 8 nationals or "A8 nationals"  The UKBA’s current European Casework Instruction for such people states:

“A8 Nationals and their family members are eligible for permanent residence once they have exercised their Treaty Rights in the United Kingdom for 5 years. The time spent in the United Kingdom prior to 1 May 2004 does not count towards the qualifying period for permanent residence”.