Introduction

The UK’s EU Withdrawal Agreement makes provision for EU Citizens, UK Nationals and their family members who have resided in the UK (EU Citizens and family members) or an EU state (UK Nationals and family members) in accordance with the Citizens Rights part of the Agreement to acquire the right of permanent residence. How does it work?

The Right of Permanent Residence

EU Citizen and UK Nationals, and their respective family members, who have resided legally in the host state in accordance with EU law for a continuous period of five years or for a specified shorter period have the right to reside permanently in the host state under the conditions set out in the free movement Directive (2004/38/EC), see article 15 of the Withdrawal Agreement.

For an explanation of how EU Citizens and UK Nationals may reside legally in host state (the UK or an EU state as the case may be) in conformity with Withdrawal Agreement requirements for the required period of five years or some specified shorter period, see my post The Residence Rights of EU Citizens and UK Nationals under the Withdrawal Agreement.

For an explanation of how EU Citizen and UK National family members may reside legally in host state (the UK or an EU state as the case may be) in conformity with Withdrawal Agreement requirements for the required period of five years or some specified shorter period, see my post The Residence Rights of Family Members who are EU Citizens or UK Nationals under the Withdrawal Agreement.

For an explanation of how non-EU Citizen and non-UK National family members may reside legally in host state (the UK or an EU state as the case may be) in conformity with Withdrawal Agreement requirements for the required period of five years or some specified shorter period, see my post The Residence Rights of Family Members who are not EU Citizens and not UK Nationals (so-called third country national family members) under the Withdrawal Agreement.

For the purposes of the Withdrawal Agreement, to count towards of the accumulation of the necessary period to acquire permanent residence, periods of residence must be acquired in accordance with the Agreement’s requirements. Thus, a self-employed Italian journalist resident in the UK for five years acquires the right of permanent residence after five years of such residence and activity. However, a French citizen who is neither economically active nor self-sufficient in the UK over the same period of time does not do so. Of course, local schemes such as the UK’s Settled Status scheme (made in the shadow of the Agreement) may be more generous in their approach.

Further, the Withdrawal Agreement provision for permanent residence is made by reference to the equivalent provision in the free movement Directive (2004/38/EC), and thus the case law of the Court of Justice of the European Union (CJEU) on permanent residence under that Directive, has applicability to the right as constituted under the Agreement.

Accumulation of Periods of Time

In addition, when calculating the time of the qualifying period necessary for acquisition of the right of permanent residence, legal residence or work in accordance with EU law before and after the end of the Brexit transition period (31 December 2020) is included in the calculation. A person who has a residence right under the Withdrawal Agreement of say two years at the end of the Brexit transition period, may continue to reside for a further three years afterwards, making five years in total, and thus acquire the right of permanent residence, see Articles 15(1) and 16 of the Withdrawal Agreement.

Continuity of Residence

For the purposes of acquiring the right of permanent residence, the Withdrawal Agreement provides that continuity of residence is not affected by the following absences:

• temporary absences not exceeding a total of six months a year
• absences of a longer duration for compulsory military service
• one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another state

The emphasis is on residence not presence. A person may maintain residence in a state while absent from it for a permitted period. It does not matter whether a person with a resided in a state on any given day, so long as they maintain residence continuity.

Continuity of residence may be attested by any means of proof in use in the host state (the UK or an EU state, as the case may be).

However, continuity of residence is broken by any expulsion decision (e.g. decision to remove or deport from the state) duly enforced (i.e. carried out) against the person concerned.

Status and Changes

The right of EU Citizens and UK Nationals, and their respective family members, to rely on the provision made in the Withdrawal Agreement for Citizens’ Rights is not affected when they change EU status, say between Worker, Self-employed person, Student, or Self-sufficient person (as the case may be), see Article 17 of the Withdrawal Agreement.

However, a person who at the end of the Brexit transition period (31 December 2020) enjoys a right of residence solely as the family member of an EU Citizen or UK National cannot become the primary bearer of rights of residence or frontier worker status. This prevents them from generating their own family reunion residence rights for their family members in turn.

Rights provided for dependant family members of EU Citizens or UK Nationals before the end of the Brexit transition period (31 December 2020), are maintained even after they cease to be dependants. A family member (e.g. a child) of a UK resident German banker who takes work as a young adult of 21 years and ceases to be dependent on her parent, retains her Withdrawal Agreement residence rights.

Retention of the Right of Permanent Residence

The right of permanent residence acquired under the free movement Directive (2004/38/EC) before the end of the Brexit transition period (31 December 2020) is not treated as lost through absence from the host state (the UK or an EU state, as the case may be) for a period of five years or less. It is only lost through an absence exceeding five consecutive years.

Again, the emphasis is on residence not presence. A person may maintain residence in a state while absent from it for a permitted period. It does not matter whether a person with a resided in a state on any given day, so long as they maintain residence continuity.