The Cube

"Right to reside". What does it all mean?

01 Jun, 2017

 

The following article was written by Nabas International Lawyers, a trading name of Cubism Ltd.  Based in London, Nabas is an international law firm that specialises in international and domestic business law.

What is the right to reside in the UK?

Most people who come to the UK have permission to enter the country and spend time here. This is called lawful presence. However if you want to claim benefits, you must also have a right to reside.

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The right to reside means that you have permission or a right to live in UK and can also claim benefits. It's also known as legal residence. There are several ways you can have the right to reside. For example, it can depend on:

  • ·  your nationality
  • ·  your immigration status
  • ·  the circumstances of you and your family members
  • ·  the right to reside under UK law
  • ·  if you're an EEA national, the right to reside under European Treaty rights.

As an EEA national you're automatically given a three-month right to reside when you enter the UK but this is not accepted as a right to reside for the Habitual Residence Test.

On the basis of the Directive 2004/38/Ec Of The European Parliament And Of The Council of 29 April 2004 - Right of residence for up to three months

  1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

  2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Under European law, if you take up work in the UK, you also gain a right to reside and you may be able to claim certain benefits.

Your right to reside will depend on your personal circumstances.

Some reasons that will give you a right to reside:

  • ·  You are an EEA national you may be able to sign on as a jobseeker and get income-based jobseeker's allowance (unless you are a Croatian national who needs Worker Authorisation)
  • ·   If you are a family member of an EEA national who does have a right to reside you may be able to argue you also have a right to reside
  • ·  If you have children with British citizenship, you could argue you have the right to reside through them
  • ·  If your parent was born in the UK you may be able to argue you have British citizenship.

If you have been working in the UK and you lose your job, or if you are self-employed and work dries up, you can keep your right to live there under certain conditions.

If you are temporarily unable to work as a result of an illness or accident, you can stay for as long as this condition lasts and prevents you from working.

If you had a permanent contract or a fixed-term contract for less than 1 year and you lost your job before the end of the 1-year period, you have the right to stay in your host country for at least another 6 months, provided you are looking for work.

The 6-month period will start from the moment your contract ended.

You must register with the public employment service as involuntarily unemployed and look for work.

If you lose your job after having worked in your host country for more than 1 year, you have the right to continue to live there, provided you are registered as a jobseeker and continue to meet the conditions required to be considered as a jobseeker.

To keep the right to stay in your host country when you lose your job or are not professionally active (self-employed), you must register as a job seeker with the employment service in your host country.

You can stay as long as you are registered as a jobseeker with the public employment service and continue to meet the conditions required to be considered as a jobseeker.

If you become involuntarily unemployed and begin vocational training, you have the right to stay in your new country for the entire duration of your training.

If you have become unemployed voluntarily, you have the right to stay in your host country for the whole duration of your training but only if that training is related to your previous employment.

If it is not, you can stay in your new country under the same conditions as students.

Under Directive 2004/38/EC of The European Parliament And Of The Council of 29 April 2004-

Right of residence for more than three months

  1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) Are workers or self-employed persons in the host Member State; or

(b) Have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) Are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

— Have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) Are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

  1. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

  2. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) He/she is temporarily unable to work as the result of an illness or accident;

(b) He/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) He/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) He/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

  1. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.

Equal treatment- During the time you're allowed to stay in your host country after losing your job, you should continue to enjoy the same rights as nationals of that country: welfare benefits, access to employment, pay, benefits to facilitate access to work, etc.

Deportation- In exceptional cases, your host country can deport you on grounds of public policy, public security, or public health - but only if it can prove you pose a serious threat. The deportation decision must be given to you in writing. It must state all the reasons for your deportation, and specify how you can appeal and by when.

You can apply for a document to prove your right to live in the UK if you’re a citizen of a European Economic Area (EEA) country or Switzerland.

You’re usually eligible for a:

  • ·  Registration certificate if you’ve lived in the UK for less than 5 years
  • ·  Permanent residence document if you’ve lived in the UK for 5 years (or earlier in some situations - for example, if you retire)

A document can make it easier to claim certain benefits and services and prove you have a right to live in the UK.  

If you would like to speak to a legal expert on the rights to reside in the UK, please get in contact with the following lawyers:

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 Vitoria Nabas

Vitoria is a triple qualified Brazil-Portugal, England & Wales's lawyer.  She is dedicated to improving the links between Latin America, the United Kingdom and Europe.

Her expertise in law, regulation and business operations in the UK, Europe and Latin America is well-known in the international community. 

Click here to contact Vitoria


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Anivaldo Esquelino

Anivaldo specialises in International Law involving transactions between Brazil, Portugal and United Kingdom.

He has a broad experience in Immigration Law and Private Client transactions. 

Click here to contact Anivaldo 


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Soraia Pereira

Soraia is a qualified lawyer in Brazil and Portugal. She specialises in Immigration and Civil Law.

She has extensive experience in acquiring European citizenship for her clients, handling complex immigration cases and Family Law.

Click here to contact Soraia