EEA nationals benefit from the provisions relating to freedom of movement under EU law.
EEA nationals have a peculiar immigration status in the context of UK immigration law:
- UK immigration law (most significantly the Immigration Act 1971 and the British Nationality Act 1981) draws a distinction between persons who have a ‘right of abode’ in the UK (mainly British citizens) and persons who do not.
- Anyone who does not have a right of abode can only enter or remain in the UK if granted leave to do so.
- Anyone who has a right of abode can enter and reside in the UK – they do not need to seek or be granted leave (though they need to demonstrate their right of abode on entry – most commonly by producing a British passport).
- EEA nationals do not have a right of abode.
- Despite this, by virtue of EEA law, EEA nationals do not need leave to enter or remain in the UK.
- This status is limited slightly by the requirement to be exercising rights arising from the Treaty of Rome; but it is nevertheless a special status, not similar to any other status under UK immigration law.
The rights of EEA nationals derive directly from EU law (the Treaty of Rome, Regulations and Directives) and where there is conflict between EU law and domestic law, EU law prevails (case 6/64 Costa v ENEL [1964] ECR 585).
An EEA national can exercise treaty rights provided they are a ‘qualified person’.
Initial right of residence
EEA citizens now enjoy a three month initial right of residence in other Member States, effectively as a short term qualified person (regulation 13 of the 2016 Regs).During this time, family members can join or accompany the EEA citizen.
Extended right of residence for qualified persons
If an EEA citizen wishes to remain beyond this initial three month period, they must be a qualified person. If they are a qualified person, they have an ‘extended right of residence’.
Under regulation 6 of the 2016 Regs, a qualified person is a person who:
a) is an EEA national; and
b) is in the UK as:
- a job seeker;
- a worker;
- a self-employed person;
- a self-sufficient person; or
- a student.
The definitions of these categories of person are broad.
Workers
The European Court of Justice (‘ECJ’) defined a worker in the case of Lawrie Blum (1986) ECR 2121 as a person who is:
- employed:
- for a period of time;
- in the provision of services;
- for and under the direction of another;
- in return for remuneration.
The definition is liberal and does not require that the person must be employed on a full time basis; the work simply needs to be ‘effective and genuine’.
EEA nationals do not need permission to work in the UK.
Involuntary unemployment
Regulation 6 (2) of the 2016 Regs also allows for a worker who has become involuntarily unemployed to continue to be treated as a worker. In order to fully understand Regulation 6(2), which is set out below, it is important to have an overview of the regulation as a whole.
Regulation 6 — “Qualified person”
Immigration (EEA) Regulations 2016
(1) In these Regulations,
“jobseeker” means an EEA national who satisfies conditions A, B and, where relevant, C;
“qualified person” means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
“relevant period means”
(a) in the case of a person retaining worker status under paragraph (2)(b), a continuous period of six months;
(b) in the case of a jobseeker, 91 days, minus the cumulative total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, not including any days prior to a continuous absence from the United Kingdom of at least 12 months.
(2) A person who is no longer working shall not cease to be treated as a worker provided that the person —
(a) is temporarily unable to work as the result of an illness or accident;
(b) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for at least one year, provided that the person—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;
(c) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided that he—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;
(d) is involuntarily unemployed and has embarked on vocational training; or
(e) has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.
(4) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.
(5) Condition A is that the person—
(a) entered the United Kingdom in order to seek employment; or
(b) is present in the United Kingdom seeking employment, immediately after enjoying a right to reside pursuant to paragraph (1)(b) to (e) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (ba)).
(6) Condition B is that the person can provide evidence that he is seeking employment and has a genuine chance of being engaged.
(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than [the relevant period] unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.
If you think the wording of regulation 6 seems convoluted, you are not alone. What regulation 6(2) means, put simply, is that a person does not necessarily lose his ‘qualified person’ status if he cannot work due to illness or accident (reg.6(2)(a)), or involuntary unemployment (reg 6(2)(b))provided that certain conditions are satisfied.
An EEA national who has been employed in the UK and who has become involuntarily unemployed will still be treated as a worker – and will therefore continue to be a qualified person – provided that certain conditions are met. These conditions are that the person must have registered as a jobseeker with the relevant employment office, and must satisfy additional conditions, described as conditions A and B.
Condition A is that the person must have come into the UK to find work, or must be in the UK seeking work immediately after a period of being a worker, a self-employed person, a self-sufficient person or a student.
Condition B is that the person must provide evidence that he is looking for a job and has a genuine chance of being taken on in a job.
Vocational training
Regulation 6 (2) (d) permits a person to retain their worker status where they are involuntarily unemployed and have embarked on vocational training.
The final category is regulation 6 (2) (e), which permits a worker to retain their ‘worker’ status where they have voluntary left employment to take up vocational training related to their previous employment.
Time limits
Regulations 6(1) and 6(7) set limits on the length of time that a person may retain the status of a worker.
A person who wants to retain their status as a worker following involuntary unemployment cannot retain this status for longer than a continuous period of six months (reg. 6 (1)) unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).
Job seekers
There is guidance on the definition of a ‘jobseeker’ at regulation 6(1). To be defined as a jobseeker, a person must satisfy conditions A and B (above). In addition, if it is relevant, the person must satisfy condition C which is a rather complicated provision and the contents of which are outside the scope of this course.
Essentially the effect of these conditions is that a jobseeker is a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.
A person who wants to continue to remain in the UK as a jobseeker cannot retain this status for longer than 91 days (reg. 6(1)), unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).
The court examined the meaning of ‘genuine chance of being engaged’ in AG & Ors (EEA-Jobseeker) Germany (2007) UKAIT 00075. The court found that it was necessary to look at a number of factors:
-
- the job seeker’s intentions in entering the member state;
- the job seeker’s efforts in relation to finding work in the member state; and
- the job seeker’s prospects of obtaining employment.
Students
A student is defined in regulation 4(1)(d) of the2016 Regs. To be construed as exercising a Treaty right, a student must:
i. be enrolled for the principal purposes of following a course of study at a public or private establishment which is:
a) financed from public funds; or
b) an institution accredited by the Secretary of State for the Home Department;
ii. have comprehensive sickness insurance in the UK; and
iii. sign a declaration confirming that he has sufficient resources not to become a burden on the social assistance system in the UK during his period of residence in the UK.
Permanent residence
Reg. 15 of the 2016 Regs provides for a right of permanent residence in the UK on various bases. The most important of these (and the most common basis for an application) is where an EEA national has resided in the UK for five years and has been a qualified person continuously for those five years.
The five years could be any five years: so if an EEA national had worked for five years continuously, but then left the UK and stayed away for three years, they could still make an application and be granted permanent resident in the UK.
A more common question is that of how ‘continuous’ is construed if, for example, a person has worked for some periods but been out of work for other periods. In this case, commonly the person would seek to argue that they remained a qualified person throughout:
-
- by being a jobseeker under reg. 6(1) (for up to 91 days);
- by being temporarily unable to work due to illness or accident under reg. 6(2)(a). In this situation, worker status is retained indefinitely, as confirmed by the ECJ’s decision in Tarola (C-483/17), 11 April 2019;
- by being involuntarily unemployed after having been employed for at least a year, under reg. 6(2)(b). Again, worker status is retained indefinitely, per Tarola;
- by being involuntarily unemployed after having been employed for under a year, under reg. 6(2)(c). Here, Tarola confirms that worker status is only retained for 6 months.
Giving up work for pregnancy does not negate worker status, as the ECJ confirmed in Saint-Prix (C507-12), 19 June 2014. That was a person who had been in employment; the same applies to self-employed persons, as the ECJ confirmed in Dakneveiciute (CJEU C-544/18, 19 September 2019).
It is also possible to remain a qualified person on the basis of the exercise of a broader combination of Treaty rights – for example, part of the period being in employment and part as a student (subject to the additional requirements in reg. 4(1)(d)).
There can be procedural difficulties, though, in demonstrating to the Home Office that a person has remained a qualified person on multiple bases.
Documentation and registration
During the transition period, for EEA and Swiss nationals, there should be only a brief passport or identity card check on arrival in the UK.
Prior to Brexit, if an EEA national person stayed in the UK other than as a short-term visitor, they could apply for a registration certificate from the UKVI website. This was normally valid for 5 years.(The expectation was that people would commonly seek a registration certificate and then, after five years as a qualified person, apply for permanent residence.)
The registration certificate confirmed the person’s right to live in the UK under EU law and allowed them to apply for residence cards for any eligible family members with them who were not EEA citizens.
The certificate was not compulsory – because the person’s rights would arise from the Treaty as long as they remained qualified persons. The certificate was therefore not evidence of any grant of leave. It was only a document by which the UK recognised the rights that the person already had.
Nevertheless, it was highly advisable for an EEA national to obtain a registration certificate, for a number of reasons. First, from a practical perspective, the registration certificate could assist the EEA national to access services in the UK, for example to demonstrate to a bank that they were resident in the UK.
Secondly, in order to apply for an EEA family permit (discussed below) or residence card for family members, the UKVI required the EEA national to have a registration certificate to demonstrate that they are a qualified person.
Historically there were no compulsory application forms – again, because a qualified person automatically had rights.