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4. a person who satisfies the first part of paragraph 3. but not the time limit is treated as being active and resident in the UK for the purposes of paragraphs 2. and 3.

5. the time limits in paragraphs 2. and 3. do not apply if the spouse or civil partner of the worker or self-employed person is an UK national.

1 Immigration (European Economic Area) Regulations 2006, reg 5

7093 Periods of activity include¹

1. periods of inactivity not of the person’s own making and

2. periods of inactivity due to illness or accident and

3. in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office.

1 Immigration (European Economic Area) Regulations 2006, reg 5(7)

7094 Continuity of residence is not affected by temporary absence¹

1. not exceeding a total of 6 months a year or

2. by absences of longer duration for compulsory military service or

3. by 1 absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or posting in another country.

1 Immigration (European Economic Area) Regulations 2006, reg 3

Permanent right of residence – Article 17

7095 A person acquires a right to reside permanently in the UK by virtue of Article 17 of Council Directive (EC) 2004/38 in the three following sets of circumstances

1. a worker or self-employed person who has ceased activity¹ or

2. the family member of a worker or self-employed person who has ceased activity² or

3. a person who was the family member of a worker or self-employed person where

3.1 the worker or self-employed person has died whilst working and

3.2 the family member resided with him immediately before his death and

3.3 the worker or self-employed person had resided continuously in the UK for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease³.

1 Immigration (European Economic Area) Regulations 2006, reg 15(1)(c)
2 Regulation 15(1)(d); 3 Regulation 15(1)(e)

7096 A permanent right of residence under Article 17 of Council Directive (EC) 2004/38 mean that the person is not a person from abroad (see DMG 419).

Other permanent rights of residence

7097 A person acquires a right to reside permanently in the UK other than by Article 17 of Council Directive (EC) 2004/38 in the three following sets of circumstances:

1. a European Economic Area national who has resided in the UK in accordance with the 2006 Regulations for a continuous period of five years¹ or

2. a family member of a European Economic Area national who is not himself a European Economic Area national but who has resided in the UK with the European Economic Area national in accordance with the 2006 Regulations for a continuous period of five years² or

3. a person who has resided in the UK in accordance with the 2006 Regulations for a continuous period of five years and was, at the end of that period, a family member who has retained the right of residence³.

(See paragraph 518 for transitional provisions relating to periods under the 2006 regulations.)

1 Article 16 of Council Directive (EC) 2004/38 & regulation 15(1)(a) of the Immigration (European Economic
Area) Regulations 2006; 2 Article 16 & regulation 15(1)(b); 3 Article 18 & regulation 15(1)(f)

7098 Continuity of residence is not affected by temporary absence¹

1. not exceeding a total of 6 months a year or

2. by absences of longer duration for compulsory military service or

3. by 1 absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or posting in another country.

1 Immigration (European Economic Area) Regulations 2006, reg 3

7099 Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the UK for a period exceeding 2 consecutive years¹.

1 Immigration (European Economic Area) Regulations 2006, reg 15(2)

7100 A8 nationals and their family members are eligible for permanent residence once they have exercised their Treaty rights in the UK for 5 years. In other words after 5 years as a qualified person or a family members of qualified person. The time spent in the UK prior to 1 May 2004 does not count towards the qualifying period for permanent residence. However, time spent as a registered worker on the Worker Registration Scheme will count towards the qualifying period.

7101 Likewise A2 nationals and their family members are eligible for permanent residence once they have exercised their Treaty rights in the UK for 5 years. The time spent in the UK prior to 1 January 2007 does not count towards the qualifying period for permanent residence. However, time spent as an authorised worker on the Worker Authorisation Scheme will count towards the qualifying period.

A8 nationals

7102 On 1 May 2004 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, and Slovenia became members of the European Union.

7103 The scale of enlargement created by the fifth Treaty of Accession went far beyond the previous four accession treaties which taken together in more than a 30-year period accounted for a total of nine new Member States.

7104 Accession arrangements have always accompanied enlargement (indeed for Portugal and Spain there was a phasing-in period of 7 to 10 years). The different accession arrangements as between Cyprus and Malta on one hand and the A8 countries on the other reflect the vastly different positions in terms on their own and the Community’s history.

7105 Throughout the negotiation process it was recognised that economic migration from the A8 countries was likely to be immense. Austria and Germany were particularly concerned as between them they share land borders with Poland, the Czech Republic, the Slovak Republic, Hungary and Slovenia. It was estimated that Austria and Germany would receive 77% of all economic migrants should workers from the A8 countries be given unrestricted free movement rights.

7106 The Act of Accession provided that the existing Member States could apply whatever national measures considered appropriate to regulate access to their labour market. Only the UK, Ireland and Sweden opened up their labour markets.

7107 The national measures applied by the UK took the form of a worker registration scheme. The Accession (Immigration and Worker Registration) Regulations 2004 set out the scheme (“the WRS“) and also amended the 2006 Regulations to include within their scope A8 nationals.

7108 The right of residence for workers and jobseekers is limited in the following ways

1. A8 workers will only be lawfully resident in the UK during their first year of employment if they have registered their employment and are working for authorised employers¹

2. A8 workers who cease to work within the first month of their employment will only be lawfully resident for the remainder of that month²

3. A8 jobseekers are not entitled to reside in the UK³.

1 The Accession (Immigration and Worker Registration) Regulations 2004, reg 5(2);
2 reg 5(4); 3 reg 4(2)

7109 There is no restriction on A8 nationals who exercise other Treaty rights. Therefore self-employed persons, self-sufficient persons and students are treated in the same way as existing European Economic Area nationals.

A8 nationals who are not required to register

7110 The following categories of A8 nationals are not required to register¹. A person who

1. had leave to remain on 30 April 2004 which was not subject to conditions restricting employment or

2. was legally working on 30 April 2004 and had been legally working without interruption* throughout the period of 12 months ending on that date or after that date or

3. had worked legally without interruption for 12 months since 1 May 2004 or

4. is a posted workers** or

5. is a family member of a European Economic Area or Swiss national who has the right to reside as a qualified person or who has a permanent right of residence.

A8 nationals who satisfy any of the above conditions are to be treated in the same manner as nationals from any other Member State.

1 The Accession (Immigration and Worker Registration) Regulations 2004, reg 2

7111 * “Without interruption” means without breaks totalling more than 30 days¹.

1 The Accession (Immigration and Worker Registration) Regulations 2004, reg 2(8)

7112 ** “Posted worker” means a person whose employer is not established in the UK and who works for that employer in the UK for the purpose of providing services on his employer's behalf.¹

1 The Accession (Immigration and Worker Registration) Regulations 2004, reg 2(9)(b)

A2 nationals

7113 On 1 January 2007 Bulgaria and Romania became members of the European Union. The government assessed the impact of the 2004 accession and decided to adopt a gradual approach on labour market access to minimise any further impact.

7114 The national measures applied by the UK took the form of a worker authorisation scheme. The Accession (Immigration and Worker Authorisation) Regulations 2006 set out the scheme and also amended the 2006 Regulations to include within their scope A2 nationals.

7115 This scheme operates in a similar manner to the WRS for A8 nationals. The essential difference being that A2 nationals are required to seek permission from the Home Office to take up work. The social security provisions are virtually identical to those for A8 nationals.

A2 nationals who do not require authorisation

7116 The following categories of A2 nationals do not require authorisation¹. A person who

1. has leave to enter or remain and that leave is not subject to any condition restricting his employment

2. was legally working on 31 December 2006 and had been legally working without interruption* throughout the period of 12 months ending on that date or after that date

3. had worked legally without interruption for 12 months since 1 January 2007.

As with A8 nationals A2 nationals who satisfy any of the above conditions are to be treated in the same manner as nationals from any other Member State.

1 The Accession (Immigration and Worker Authorisation) Regulations 2006, reg 2

Transitional provisions

7117 Transitional provisions related to the 2006 Regulations¹.

Any period during which a person carried out an activity or was resident in the UK in accordance with the Immigration (European Economic Area) Regulations 2000 shall be treated as a period during which the person carried out that activity or was resident in the UK in accordance with the 2006 Regulations for the purpose of calculating periods of activity and residence under the new Regulations.

1 Immigration (European Economic Area) Regulations 2006, para 6(1) of Sch 4

7118 Transitional provisions related to the right to reside test¹

The right to reside test does not apply to persons who are entitled to an income related benefit on 30 April 2004. A person will continue to be entitled to Income Support, income-based Jobseeker's Allowance, State Pension Credit and Housing Benefit until that claim ends if

1. they were entitled to that benefit on 30 April 2004 and the claim has not terminated or

2. they make a claim after 30 April 2004 and it is determined that entitlement commenced on or before 30 April 2004 or

3. they make a claim for one of the income-related benefits and entitlement is continuous with entitlement to another income-related benefit or

4. they claim income-based jobseeker's allowance and the claim links with another claim that includes 30 April 2004.

1 SS (Habitual Residence Amendment) Regulations (NI) 2004, reg 6

Amendment 3 March 2014