The right of permanent residence for EU citizens and their family members comes from Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States “the Directive”. Article 16 of the Directive states as follows:

“Article 16

General rule for Union citizens and their family members

1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.”

The right of permanent residence is set out at Regulation 15 (1). This states, so far as is relevant:

The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(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 these Regulations for a continuous period of five years;

An EEA national and their family member resides in the UK in accordance with the Regulations if they satisfy one of the relevant Regulations.

Residence prior to the commencement of the Immigration (European Economic Area) Regulations 2016 can be relied upon for the purpose of calculating period of residence in the UK as set out in Schedule 6 at Regulation 8:

8 Periods of residence prior to the coming into force of these Regulations

(1) Any period of time during which an EEA national (“P”) resided in the United Kingdom in accordance with the conditions listed in sub-paragraphs (2) or (3) is to be taken into account for the purpose of calculating periods of residence in the United Kingdom in accordance with these Regulations.

(2) The condition in this paragraph is that P resided in, or was treated as though having resided in, the United Kingdom in accordance with—

(a)the Immigration (European Economic Area) Regulations 2000(1); or

(b)the 2006 Regulations.

(3) The condition in this paragraph is that P resided in the United Kingdom in circumstances where—

(a)P was a national of a State which at that time was not an EEA State;

Residence Prior to Accession of Croatia to the EU on 1 July 2013

Regulation 8 of Schedule 6 does not refer to the family members of EEA nationals, in paragraphs 1, 2 or 3. However, it is cannot be the drafters’ intention that as a result of the new Regulations coming into force that every non-EEA national family member has to re-start their 5 year period to be relied upon for the permanent residence calculation on the date of commencement, (for most matters:) 1 February 2017. It is clear that the Regulation is drafted to focus on an EEA national since when an EEA national is a qualified person, their family member is thus also able to reside under the Regulations….. READ FULL ARTICLE