The UK, The EU and Your Settlement Rights

We handle a large number of Indefinite Leave to Remain, or settlement, applications for clients who have spent 5 years legally in the United Kingdom and want to live and work here with no restrictions.   A grant of ILR means that the applicant retains their nationality and does not become a British citizen, but he or she will no longer need to apply for visa extensions in order to remain in the UK and continue employment here.

However, we also receive more complicated queries where a marriage or partnership between a British citizen and their non-EEA spouse has dissolved, but the foreign national also wishes to remain in the UK.  Do they still have the legal right to remain here, provided they have resided legally in the UK for 5 years, or is that right removed when they are no longer married to the spouse on whom their UK visa was dependent?  And what about situations involving an EEA member who has brought a ‘third party’ national (ie, a migrant from a country which is not a member of the European Union) to live in the UK, but again the marriage ends and the EEA national either returns to their home country or lives a separate life from their non EEA spouse?  In cases involving EEA nationals and their non-EEA spouses the situation can become even more problematical, as the UK is bound to honour certain rights prescribed by the European Treaties, through our national laws.  Therefore, it is not merely a case of assessing the UK’s policies on the matter, but one must also examine European law in this area, to establish whether a migrant has the right to settlement.

The appeal case of Idezuna (EEA – permanent residence) Nigeria [2011] UKUT 00474 (IAC) looked at the same issues we have just touched on, and gave some guidance in this area.

It concerned a Nigerian citizen who had married a Portuguese citizen in 2004 and been issued with a residence card upon marriage as a family member of an EEA national, which was due to expire in 2009.  The couple divorced in 2010 and shortly afterwards, the appellant applied for a residence card as confirmation of his rights to live indefinitely in the UK. 

The Immigration (European Economic Area) Regulations 2006 (hereafter, ‘the Regulations’) provide that:

  “The following persons shall acquire the right to reside in the UK permanently –

 (b)   a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with those Regulations for a continuous period of five years.”

Furthermore, Regulation 15(2) states that: “Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two years.”

However, the appellant’s initial application for indefinite leave to remain was refused on the grounds that there was a failure to provide sufficient evidence to show either:

  1. that the appellant’s ex-wife was exercising European Treaty rights on the termination of the marriage, contrary to the Regulations (this would be necessary for him to qualify for continuing UK residency rights); or
  2. that he had lived in the UK for a continuous period of five years in accordance with the same Regulations (this would be necessary for him to attain permanent residence in the UK).

The applicant’s initial appeal against this refusal was dismissed, and the matter came before the Upper Tribunal (UT).

As regards the first point, namely that the appellant’s ex-wife had failed to exercise Treaty rights, it was decided that the First-tier Tribunal had made an error in law and therefore the decision was set aside.  It was pointed out that “the appellant’s ex-spouse had been in the UK exercising Treaty rights unbrokenly from the date of the marriage until the date of divorce, which was a period longer than five years.”  Therefore, the appellant had actually acquired a right of permanent residence in the UK in 2009, five years after the couple had married.  A point to note is that the couple in question did not need to prove they had been cohabiting in the UK, but only that they were both present here. 

Secondly, at the UT hearing the appellant was allowed to present evidence on the point of whether he had lived in the UK continuously for five years.  It is possible for an indefinite leave to remain application to succeed where an applicant has had trips outside of the UK within that 5 year period, but absences cannot exceed 180 days in any year and no single absence can be longer than 90 days at a time.  The applicant was able to provide passport and visa details to prove that he had only left the UK for 2 short periods in 2006, and furthermore that he had been studying and paying taxes during his time here.  Therefore, the UT found that not only had the appellant acquired a permanent right of residence in 2009, but also that he had not been absent from the UK for any period of time either before or after acquiring this right, which could result in his disentitlement to ILR.

Clearly, this is a case which highlights that it is possible for non-EEA citizens to qualify for permanent settlement in the UK, even if their marriage or partnership has broken down, providing they have lived here with their spouse or partner for five years.  Furthermore, once this right of permanent residence has been attained, it can only be lost should the applicant live outside of the UK for longer than 2 consecutive years.

We include the following ‘general observations’ from the Upper Tribunal:

(a)       Typically, the focus in EEA appeals involving family members is on either or both (i) the nature of the relationship with the EEA national/Union citizen; and (ii) the question of whether the EEA national/Union citizen has been exercising Treaty right in the UK over the relevant period. As can be seen from the facts of this case, however, what constitutes the relevant period may be a matter requiring particular consideration. It needs to be borne in mind that sometimes a family member may have acquired a right of permanent residence on the basis of historical facts.  In the present case, for example, once the appellant had established that his wife was exercising Treaty rights for five continuous years since the date of marriage (and before he was divorced), then (subject to (d) below) he was from that date someone who had a right of permanent residence which could not be broken by absence from the UK unless in excess of two years. 

(b)       Continuous residence in the UK of the applicant/appellant family member is also an essential requirement for proving permanent residence under the 2006 Regulations, as is clear from the wording of regulation 15(1)(b) which requires that to acquire such a right a family member must have “resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years”.  In a similar vein, Article 16(2) of Directive 2004/38/EC extends the right of permanent residence to ”family members who are not nationals of a Member State and have legally resided with the Union citizen in the host state for a continuous period of five years.”

(c)        Whilst often it may not be in dispute that the applicant/appellant family member has been in the UK during the relevant period, that is not something which can be taken for granted and it may sometimes become necessary on appeal for the tribunal judge to make a finding on the matter based on the evidence.  However, if, as here, it has not previously been raised by the respondent, then procedural fairness dictates that an appellant must be afforded a proper opportunity to deal with the issue. In this case, having found the IJ materially erred in law, the Tribunal put the appellant on notice of the need to produce evidence relating to his residence in the UK and, as we have seen, the evidence he produced in response more than sufficed to persuade the respondent to concede the appeal.

(d)       Further, when assessing whether the applicant/appellant family member has resided in the UK continuously for the purposes of qualifying for permanent residence, it must be recalled that regulation 3(2) of the 2006 Regulations provides that  continuity of residence is not affected by (a) periods of absence from the United Kingdom which do not exceed six months in total in any year; (b) periods of absence from  the United Kingdom on military service; or (c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy, childbirth, serious illness, study or vocational training or an overseas posting. Article 16(3) of the Directive is to similar effect.  Hence in the instant case the fact that there was nothing on the face of the evidence which suggested that the appellant had had a period of absence anywhere near six months long made the IJ’s decision to query the matter on his own initiative even more curious.

(e)       Finally, once a right of permanent residence has been acquired, it can be lost only through the absence from the host Member State “for a period exceeding two consecutive years” (regulation 15(2) of the 2006 Regulations; Article 16(4) of the Directive.


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