Working status and permanent residence
By Amar Ali, Immigration Solicitor
A stay home parent who is also an EU national does not qualify for permanent residence. Permanent residence status can be obtained by an individual if he or she is the partner or spouse of an EU national and is also employed and working and under this criteria the individual can also apply for British citizenship.
An individual who is a non-EU citizen but is the partner of an EU citizen that is exercising his or her treaty right who is also working can apply for a Permanent Residence Card after five years.
Recently, the UK has voted by a slim majority to leave the EU, therefore in case their right to reside changes after Brexit, the other 27 member states staying in the UK will need to solidify their right to reside in the country.
An EU citizen must be a qualified individual in order to obtain a permanent residence status. Individuals who are non-EU nationals but are the family members or extended family members of a qualified individual who is an EU national can apply for a Permanent Residence Card under certain circumstances.
Definition of a ' qualified person '
For a period of three months all EU nationals have the right to live in an EU member state. Therefore after the three month period, the individual must be a qualified person to remain in the UK. An individual who is an EU national exercising his or her treaty rights (Treaty on the Functioning of the European Union) is regarded as a qualified person.
An individual must either be employed, self-employed, studying or economically self-sufficient in order to exercise their treaty rights as an EU national. A comprehensive sickness insurance needs to be in place for those individuals who are studying or are economically self-sufficient before their Treaty rights are effective and this is so that the individuals do not become a financial burden on the host state.
Job Seekers
Under certain circumstances, individuals who are EU nationals looking for work are regarded as qualified persons. The individual must prove that there is a realistic chance that he or she will find employment and he or she must prove that they are actively looking for work.
On the 1st of July 2014, the EEA Regulations 2006 was modified to include that "a job seeker will be considered as exercising treaty rights or having retained worker status" in the following ways:
- The individual previously had the right to reside as a job seeker for six months, discovered employment or in another way they exercised another treaty right;
- The only time the job seeker will continue to have the retained worker status is after there has been a continuous absence of 12 months from the UK;
- The job seeker will have to prove with convincing evidence that from the beginning he or she has had an honest prospect of finding work if he or she has not been in the UK for less than a year and would want the benefits of a retained worker status.
However under the amended EEA Regulations 2006, this does not alter the fact that jobseekers are still viewed as 'qualified individuals' for the purpose of theirs rights to reside.
Why are stay at home parents who are EU nationals excluded?
Stay at home parents who are EU nationals are not considered job seekers or economically self-sufficient (in most situations). Individuals who are considered self-sufficient must be able to portray that they have sufficient assets and well-meaning income and they do not need to result to looking for assistance under the UK benefits system.
Although, an individual might rely on UK benefits if as a stay home parent is taking care of dependants and he or she is suddenly left by the spouse or partner or the spouse or partner dies and the individual remains in the UK.
Extended family members and Non-EU family members
The following are considered to be Non-EU family members or third country nationals:
- Spouse/civil partner;
- Direct dependants under 21 years of age or are the dependents of the non-EU family members or their spouses/partners;
- Direct relatives who are dependent on the non-EU family members or their spouse /partner.
As long as the EU national has a right to stay in the UK, the EU national's third country direct family members have the right to join or go together with the EU national. Applicants who want to reside in the UK for more than six months have to go through the two-stage procedure as recommended. The procedures are as follows: Firstly, an EEA family permit must be applied for from outside the UK and upon arrival the applicant must apply for an EEA residence card. Under the immigration rules, compared to most applications, the application for residence card takes significantly longer and same-day service applications through the Premium Service Centres are not made available.
In order to gain permanent residency, what can EU nationals who are stay at home parents do?
For an EU national to become a qualified individual who can gain a Permanent Residence card, he or she would need to start exercising their Treaty rights. Applying for British Citizenship is the safest way for an EU national to secure his or her right to remain in the UK irrespective of any governmental changes after Brexit and this can only be done if the applicant has a Permanent Residence card. The eligibility for this statement is if an EU national has exercised his or her treaty rights for five years.
Irrespective of what happens with Brexit, an individual and his or her partner who are EU nationals and have made the UK their home must both take action by ensuring their residency rights remains unchanged.
