Do I need to get a residence card?
What will Permanent Residence (PR) status entitle me to post-Brexit?
This has not yet been determined, although there seems to have been some initial consideration given by UK Visas and Immigration to the likely illegality of obliging anyone who has demonstrated PR status to leave.
Our view is that making this application may well be good evidence of the right to live and work in the UK at a future date after Brexit takes effect. It is likely that some form of “cut-off date” will be imposed at some point in the negotiations whereby EEA citizens who arrived in the UK after a specified date will have different rights of residence than others. Whilst the terms on which EEA citizens may stay in the UK after this are to be negotiated, we feel obtaining such a card may well help in showing a future employer the right to work in the UK, crossing borders and re-entering the UK and being able to demonstrate access to public funds.
Should we apply for PR now or should we wait given the current uncertainty surrounding the long-term view on those that hold PR?
That is an individual decision to make and, since Brexit is likely to take at least two years to negotiate, it may be worth waiting to obtain permanent residence. It is possible, for example, that there may be more clarity about the rights one can anticipate in future or further streamlining of the process during this period.
To date, we have seen a simplification of the process to make an application for permanent residence and what seems to be a rapid improvement in the processing times for applications. It may be that this continues to improve as the negotiations proceed.
Do I need to declare all of my nationalities on the EEA (Permanent Residence) form?
Would the permanent residence protection regarding two years’ absence apply to those who have not applied for a card?
What are the options of EU citizens that were resident in the UK for many years but are not at the moment?
It is possible to qualify for permanent residence in the UK on the basis of prior residence. The period of residence as a qualifying person must have continued for five continuous years, but need not be the most recent; any consecutive period is acceptable.
If you have not been resident in the UK for a continuous period of five years, or cannot demonstrate this, it would be possible to make an application as a qualified person instead if exercising one of the four rights to be in the UK at present.
When are we likely to know more about what our rights will be after Brexit?
At the time of writing (early April 2017) the UK has recently given notification that it intends to leave the European Union. There have been some indications in the media that agreements have already been reached regarding reciprocity of immigration arrangements. Political events in Europe scheduled for this year (French and German elections are scheduled for May and September respectively) may mean the earliest likely date of such an announcement is in the autumn of this year.
Whilst there has been discussion about achieving a “generous settlement” for those EEA citizens already exercising qualifying rights in the UK, the government’s current view is that it would not be appropriate to clarify this further until negotiations in respect of free movement have commenced. It is anticipated that the government will seek reassurances about the rights of British citizens living elsewhere in the EEA as part of this negotiation.
How should I approach residence if I’ve been here for more than five years as a qualified person?
You will be considered free of immigration restrictions on the earliest date on which you demonstrated five years’ residence in the UK exercising one of the qualifying rights. A person employed since 1 January 2006, for example, would probably be able to demonstrate this by 1 January 2011, so can be considered by UKVI to have been free of conditions since that date, even if the card itself has not been issued until 2016 .
The importance of showing a date of permanent residence earlier than the current one is that applicants for British citizenship must be free of any immigration restriction for one year at the date of the application. A person in the above situation, seeking to make a British nationality application as early as possible, would therefore be advised to establish permanent residence from no later than 2015.
You should evidence each of the five years as a qualifying person in the UK and as resident in respect of the relevant period. This would mean, for example, P60 forms, payslips and bank statements which cover the period starting on 1 January 2006.
What happens if there have been periods over the last five years in which I was in the UK but not actively job seeking?
This would need to be assessed in relation to each individual application and it may be appropriate to obtain advice and review of the application before it is submitted. It is not possible to qualify for permanent residence with gaps in the basis of qualifying during the five years’ of residence necessary (although absences from the UK are permitted). Any periods in which the qualification is not clear should be explained within the application.
The evidential standard to establish residence in the UK as either a jobseeker or a self-sufficient person is a relatively high one and we would suggest applicants should not presume it would be considered the criteria to be obviously met from a small number of documents.
What if I am British and working in an EU country?
Each of the EEA countries has domestic immigration law which is applied to all non-citizens seeking to live and work there. Whilst citizens of other EEA countries, such as the UK, retain a right to do so at the moment without prior permission, that is likely to change in the event of Brexit. A form of work permit arrangement exists in each EEA country which is intended to protect access to the labour market for its own citizens and those of other EEA countries.
It is likely that some form of transitional arrangements will be in place for British citizens who have exercised these rights in an EEA country before Brexit. What the arrangements will be is one of the many items yet to be agreed in the course of Brexit negotiations.
A development which is likely to help British workers in EEA countries seeking the right to remain after the date of Brexit is the implementation of what is known as the “Blue Card Directive”. These laws are intended to help highly educated individuals to work in the relevant countries if they possess suitable qualifications and a job offer with a relatively high salary and means there is no need to advertise such roles to local workers. In Germany, for example, this process applies to those who hold degrees and have a job offer with a salary above EUR 49,600; in France the salary required is higher at EUR 54,000; in Italy and Spain, it is significantly less (salaries of EUR 25,000 and EUR 26,000 respectively are necessary). Possession of such a Blue Card allows employees to live in this country and, ultimately, to settle there permanently.
I didn’t register my employment under the Worker Registration Scheme (WRS), which I was meant to do – will this impact my EEA PR application?
We think this is very unlikely to present a difficulty although UK Visas and Immigration does state that work without registration under the WRS, when that was necessary, may not count towards the qualifying period.
The Worker Registration Scheme ended more than five years’ ago and, whilst those living and working in the UK were subject to its requirements at that time, it seems very unlikely to have an impact on whether you can be considered a qualified person or permanent resident now.
If I don’t have permanent residence – will I need a working visa post-Brexit?
This is a critical question to those considering such applications but, at the moment, not determined. We know the government has called for a “generous settlement” in respect of those currently in the UK exercising qualifying rights.
What are working visas and how will I qualify for one?
The UK currently has an immigration system whereby employers may sponsor workers from overseas to undertake skilled roles in the UK. QMUL holds such permission to sponsor employees. In many circumstances, it is necessary to show that there are no suitable resident workers available to take the role before this can be offered to someone who needs permission to work in the UK. If sponsoring an employee in the UK, permission to stay can be granted for up to five years after which it may be possible to apply for the right to stay permanently.
It is relatively unlikely that employees from EEA countries currently working in the UK would be obliged to apply for permission to work in this way on Brexit, with some form of transitional arrangement likely regarding existing employees. The precise nature of this will become clearer during the negotiations.
Do I have to list all of my absences for an EEA (Permanent Residence) application? What if I cannot recall them all accurately?
There is no longer a requirement to list absences from the UK on the online application form EEA OR, introduced in February 2017. The only specific piece of information needed is whether you have ever been outside the UK for more than six months in any one of the five years of the qualifying period. This is helpful to applicants.
If you are applying using the paper application form, there is still a need to state absences from the UK and you should list these as accurately as you can.
If you travel to a Schengen country on an EEA passport there will be no evidence of your travel between these countries and it may prove genuinely impossible to find this information. It is reasonable in this situation to give your best estimate of the days on which you were absent and inform UKVI that, whilst it is accurate to the best of your recollection, it may not be recorded 100% correctly. A suitable formula to add to the form might be as follows:
“Information in respect of my travel since I first arrived in the United Kingdom is accurate to the best of my knowledge. I have not previously been keeping records of this, however, since I have had no need to do so and it has not been possible to fully reconstruct this from my immigration stamps. Any errors or omissions are for this reason only and are inadvertent.”
Absence of less than six months in an application year are permitted for these applications, but is there any discretion to allow longer than this?
UK Visas and Immigration advise that, in the course of five years’ qualification, they also have discretion to allow for one absence of between six and twelve months if it was for an “important reason”. Study, vocational training or overseas posting are stated as being examples of such important reasons, although their guidance does not comment on this further.
It would appear that activity such as a sabbatical or overseas work might potentially qualify within this category. I have sought further commentary on this from UK Visas and Immigration.
How many documents should I produce to show my home address in an EEA (Permanent Residence) application?
This requirement is also changing as a result of the online application process. Applicants who complete the form in this way are advised that they need to produce only P60 forms for the relevant five years of the application, plus evidence of ongoing employment since the last of these was produced. Payslips would be suitable evidence of that, as would a P60 from the preceding year.
The official guidance has, unfortunately, yet to change regarding this. Whilst we think it is unlikely that anyone applying online who follows these guidelines would face any degree of difficulty, it is suggested that additional evidence of residence may currently be helpful if it is available.
UK Visas and Immigration advises that documentation from at least five different sources should be obtained to show your residential address during the five year period and that it would be appropriate to include at least two documents for each year of residence being stated.
It can be challenging to find the documentation, but should be possible in most circumstances. As an example, if seeking to show you have lived in the UK between 1 January 2010 and 31 December 2015, documentation which would help to show this could include:
- Two monthly bank statements addressed to you in each of the years 2010 to 2015 inclusive;
- Two payslips containing your home address for each of those years;
- Five domestic bills (such as gas, electricity, telephone or council tax) sent to you in each of the years;
- A document concerning occupation of your home (tenancy agreement, mortgage statement) or regarding finances (such as pensions or insurance) for each year;
- Other correspondence from “official” sources (the NHS, schools, library, professional body, trade union, for example) for each year.
If I rely on payslips or bank statements, do they have to be originals and how many should be included?
Yes, you should submit original documentation in respect of these applications. There are very limited circumstances in which anything other than this can be accepted.
You should note in particular that bank statements and bills received online need to be certified as genuine documents by the organisation issuing them. In respect of bank statements, it may prove more straightforward to obtain original copies of this.
With reference to payslips and P60 documents, these can be certified as accurate by the HR team.
What are the documents for self-employment?
This is extensive and listed in Annex B of this document (from page 15 to 18) from UK Visas and Immigration. You should send:
- a self-assessment tax return, statement of account, tax calculation, P60 or HM Revenue and Customs receipts;
- evidence of registration with HM Revenue and Customs;
- the documentation specified concerning National Insurance contributions;
- similar information in respect of VAT registration;
- two of the specified pieces of evidence to show earnings;
- evidence as outlined to show that the business is trading;
- documentation to establish the business is a partnership, limited company or franchise if applicable;
- evidence of your qualification, if needed, to undertake this work.
A significant amount of evidence may be needed to show your self-employment. We would suggest this may be an application which it would be helpful to obtain legal advice if the information is not readily available.
What if my bank statements are addressed as outside the UK?
That seems counter-productive to the permanent residence application, which requires you to demonstrate that you have lived in the UK for a five-year period. Whilst the transactions themselves will do that, it doesn’t demonstrate that you have been physically residing at a UK address.
We would suggest the reason for the different address should be explained in a covering letter to the application and that you are able to submit alternative documentation to show your residence in the UK.
I have been in the UK for 17 years. Do I need to provide information and enclosures to cover all 17 years or just the specific five-year period I am relying upon for PR?
I have multiple names that are not all stated on my bank account – how can I deal with this when I need to provide evidence?
Does child benefit count as evidence of UK citizenship?
Submission of application
Should I use EEA3 form or the EEA (PR) form?
What is the Passport Return Service and the Premium Service?
It is possible to make applications for EEA QP or EEA PR online, then bring the documents to a local register office, with the passport being returned to applicants on the same day.
In Greater London, there are currently 16 local authorities take part, including Hackney Islington and Waltham Forest. The service currently requires the online application form to be used and is available only for EEA citizens. The appointment must be made within five days of applying online, so it is advisable to book the appointment in advance of making the application and to time submission of the application around that. Some local authorities, including Hackney, offer this as a walk-in service. We understand that a charge of £10 plus postage is usually applied to this service and that this is very popular.
If you require a decision quickly regarding your application, you may be eligible to apply through a Premium Service Centre for a fee of £500. The link above provides more information and it is possible to check eligibility for the service. Physical attendance at a UK Visas and Immigration office is necessary.
Our understanding is that there has been a long delay in getting such appointments since the referendum outcome, but this may be eased by the passport return service.
How long does the application process take?
Recent reports indicate an average processing time of around two months.
We understand there are 120,000 applications awaiting processing which may increase delays, although it should be noted that UKVI are considerably increasing the number of staff allocated to this work.
If your passport or travel document is likely to expire within a year, it’s advisable that this is renewed before submitting a postal application.
Should you apply by post and are obliged to submit a document to confirm your nationality, we would suggest you prepare yourself for the possibility that this may not be returned to you in good time. Sending either a national identity card or a duplicate passport (ie, an original second passport issued to you by your government) may assist with this.
Who requires comprehensive sickness insurance?
An applicant who seeks recognition of the right to permanent residence whose qualification is based on having been either a student or a self-sufficient person over the previous five years. Family members of anyone making such an application also need this insurance.
Those here as students or self-sufficient, or who have been so in the last five years and seek to include that time, do need “comprehensive sickness insurance”.
What qualifies as being comprehensive sickness insurance for this purpose?
There are three ways for an applicant to establish they have held comprehensive sickness insurance during the relevant part of the five qualifying years:
- Holding a private health insurance policy for the relevant period. There is no definition provided by UK Visas and Immigration of what this phrase means other than that it needs to cover most risks to health.
- Submitting a European Health Insurance Card (EHIC), issued before the period of study or self-sufficiency, as evidence this was held. The card must have been issued outside the UK and in advance of the relevant period of residence.
- Proving there is a reciprocal arrangement in respect of insurance which protects the applicant. UK Visas and Immigration mention the S1, S2 or S3 forms in their guidance notes as being appropriate for this purpose. There is more detailed information about how to apply for these on the Free Movement blog.
Regulations took effect on 1 February which give UK Visas and Immigration authority to refuse entry to self-sufficient or student applicants without comprehensive sickness insurance. The government has subsequently said it does not intend to enforce this.
How do I obtain retrospective confirmation that I was covered by this from my home country?
The S1, S2 and S3 forms are appropriate for this purpose. You can find more information on how to obtain one of the three forms here.
The S1 form, which is evidence of an entitlement to healthcare in a former country, is the one which will most commonly be relevant to student and self-sufficient applicants in the UK. The form is obtained via the health insurance authority in the home country, then forwarded by the applicant to the Department for Work and Pensions. It is necessary to include a certified translation of the form before sending this to the following address to be attested.
What if I just can’t get a suitable reply from my home country about this?
We have heard of situations where, unfortunately, this appears to be the outcome. Former students from Romania have reported that their government does not respond to queries regarding coverage for those overseas at present. We have also been advised that the relevant government department in Greece is especially slow at responding to such queries and it may not be practical to obtain such information from them.
We have not made applications for permanent residence without such evidence previously, but can see there would be circumstances in which it would be unreasonable for UK Visas and Immigration to determine that the right to permanent residence has not been established in circumstances such as these. Other than being able to establish a qualifying right over the necessary period in a category which does not need comprehensive sickness insurance (working, job seeking or dependence on someone who has permanent residency in the UK based on these categories), there is little more that can be done.
One of the advantages of attending sessions in which frequently asked questions are raised is that others can share experiences about resolving issues such as this. Listening to other people’s experiences or checking information on supportive websites (see ‘Useful links’ below) is an excellent way to do this.
What are the requirements of private insurance?
This is not well defined in the UK, in part because of the nature of the coverage provided by the NHS and the fact there is no direct equivalent to this in any of the other member states of the EEA. It is clear, from existing case-law at least, that access to the NHS is not sufficient.
Whilst there is no reliable definition of how ‘comprehensive’ an insurance policy would need to be to meet these requirements, some guidance from UK Visas and Immigration suggests it would need to meet “the majority of risk” an applicant might face whilst in the UK. In the absence of any specific guidance, it is suggested to obtain the most comprehensive level of care which could reasonably be considered necessary.
I read that I might be considered to be here illegally and not allowed back in without comprehensive sickness insurance – is that true?
This is a statement which has been made by UK Visas and Immigration caseworkers and, on the basis of the most recent legal regulations regarding EEA citizens in the UK, this is a possible approach open to them for those who are either students or self-sufficient people. This has caused a lot if controversy since it became apparent.
UK Visas and Immigration has subsequently said the caseworkers concerned had misinterpreted the policy and there is in fact no intention to refuse entry to people in this situation.
If I’ve been a student and a worker for part of this time, how could I be classified as in the latter category and therefore not needing the insurance?
You may not need to evidence healthcare if you have been in employment whilst studying.
The work itself needs to be “genuine and effective” for qualifying status as a worker to be established. The interpretation of that phrase is not consistent by the Court of Justice of the European Union, but there is no specific minimum hourly requirement defined in the directive if the work is genuinely undertaken.
We understand UK Visas and Immigration generally do accept that work is genuine and effective if the payment is such that National Insurance contributions are due (currently £155 per week); if less than that, it will be necessary to explain to UK Visas and Immigration that the relevant income in fact does meet the requirements.
We would suggest further advice is sought if your work has been part-time and you are not able to show coverage through comprehensive sickness insurance during this period.
What if I received a scholarship or sponsorship or was paid for postdoctoral work – is that “working” “or studying”?
Aside from the assessment above of whether the work is “genuine and effective”, there is a possibility that some students who receive sponsorship or payment may be considered to be “working” in the UK rather than studying. That would be highly significant, since it would mean the requirement to demonstrate comprehensive sickness insurance would no longer apply.
Whilst this does seem an attractive potential solution to this issue, it may not fit the circumstances of many in the UK in receipt of a scholarship. A payment of a scholarship would need to be in return for specific progress or work to be undertaken on a course and, we would assess, it would usually be necessary to be liable to pay tax in respect of such sponsorship. Since scholarships tend to be organised in a way which is tax efficient and such payments would not be required, it seems unlikely that many sponsored students would qualify.
Postdoctoral work does seem likely to meet the requirements of being a “worker” rather than a student, given that this tends to be based on a salary, paid in respect of a specific number of hours worked and attracts payroll tax. We cannot see a reason for postdoctoral research work to be considered outside this definition.
Which self-sufficient people could find this requirement difficult to meet?
Is there any possibility the law might be changed or UK Visas and Immigration might approve an application without this?
A case called Ahmad v Secretary of State for the Home Department  EWCA Civ 988 has established quite recently that UK Visas and Immigration’s position is supported by law in respect of this; using the NHS is not deemed in itself evidence of comprehensive sickness insurance and some further evidence of this is necessary.
UK Visas and Immigration is not, however, obliged to apply to law in this way and could simply waive the requirement to hold comprehensive sickness insurance if it wished to do so. This may be the most likely outcome given the large number of individuals who may otherwise not qualify to stay in the UK following departure from the EU.
If my Permanent Residence (PR) card expires on a specific date, does this mean that my PR status is only valid until that date?
No, permanent residence is acquired automatically after five years’ residence as a qualifying person in the UK and, since there is no obligation to obtain the card, one does not cease to be a permanent resident when it expires.
It is advised to obtain such a card for evidential reasons so that, on Brexit, you will be able to demonstrate the right to live and work in the UK. Whilst the requirements are not yet known, we would suggest the right to work legislation may well require EEA citizens to demonstrate permanent residence with current and valid PR cards.
Can I lose Permanent Resident status once I have qualified?
Currently if you spend more than two years outside of the UK or commit a serious crime, such as an act of terrorism, residency may be revoked. We think it is very unlikely the government would revoke permanent residence as a consequence of the Brexit negotiations.
The requirement in the immigration rules for citizens of countries outside the EEA coming back as returning residents also obliges them to “seek admission for the purpose of settlement” when coming back to the UK. A person in that situation who tells an immigration officer on arrival that they are staying for a short time just to renew their residence rights might therefore not qualify.
It is too early to predict whether that’s going to be the case for EEA citizens in Brexit. We have little to base the assessment on, given that EEA citizens are asked few questions on re-entering the UK at the moment, and their right to exercise settlement is not something immigration officers have any need to consider.
On what date does an EEA FM (family member) holder qualify for Permanent Residence? Do they need five years with this status? What happens if they acquired it on a different date?
A family member needs to complete five years’ residence in the UK in the same way a qualified person does. Should the date on which a family member acquires the right to stay be later than that on which the qualified person first established this (for example, if the couple married whilst in the UK), the earliest date on which an EEA FM application to request permanent residence may be made will be later than that of the qualified person.
There are limited circumstances in which a family member would not need to live in the UK for a five-year period where one of the “retained rights of residence” can be established.
How does this impact spouses who are not EEA citizens and have residence cards?
If my spouse holds a five-year residence card based on my status as an EEA PR, does he still qualify for permanent residence if I become British within those five years?
We understand this does impact a spouse’s right to stay in the UK. UK Visas and Immigration takes the position that, following a case called McCarthy v United Kingdom (C-434/09), British citizens who have dual nationality may not seek the benefit of rights deriving from EU law unless moving to a different member state.
In reply to a Freedom of Information Act request we have seen about the interpretation of this set of facts, it was suggested that a spouse with a current Residence Card who relies on their status through an EEA national would need to leave the UK on that person becoming British (even if dual nationality is allowed) and re-qualify for entry under the more restrictive terms of the UK’s immigration rules. These require, amongst other things, a minimum income to have been earned within the UK in the past 12 months. This can, potentially, leave applicants in the strange situation that their immigration status is jeopardised by their partner becoming a British citizen.
I have a child born in the UK – can I automatically get UK citizenship?
No, children do not automatically become British by virtue of birth in the UK. Whilst this might be relevant to the immigration status of their parents in some circumstances, it will generally still be appropriate to seek confirmation of the right to residence on the basis of being a qualified person, permanent resident or dependant.
Most children born in the UK are very likely to have the same immigration status as their parents. Those whose parents have lived in the UK for at least five years at the time of their birth may qualify for British citizenship automatically. The rules regarding this are slightly complex and depend on the date on which a child has been born in the UK:
- children born in the UK before 2 October 2000 are automatically British if either of their parents was exercising a Qualified Person right at the time of their birth;
- those born after that date but before 29 April 2006 are automatically British if one of their parents obtained formal confirmation of the right to live permanently in the UK before they were born;
- if born later than this, it is necessary to show a parent has a right to permanent residence acquired before birth, not necessarily a document showing this.
There are detailed rules in place about children obtaining British citizenship by application if born outside the UK or otherwise not matching a category above. It is unusual for a child to be registered as a British citizen if at least one of their parents is not currently British or applying at the same time, but there is discretion for caseworkers to allow this.