Retired or incapacitated workers

European Economic Area (EEA) nationals who reach retirement age while in the UK acquire a permanent right of residence if, prior to reaching pension age or taking early retirement, they: [1]

• worked/were self-employed in the UK for at least 12 months (or worked for at least 12 months in another EEA state but returned 'as a rule' at least once a week to their home in the UK during that time [2]), and

• resided continuously in the UK for at least three years (periods working/being self-employed in another EEA state count towards the three years, as long as the worker/self employed person returned to the UK once a week as above).

Family members of EEA workers/self-employed people who ceased activity in accordance with these conditions acquire a permanent right to reside in the UK provided they enjoyed a right to reside as their family members at the point the workers/self-employed people ceased activity. [3]

EEA workers/self-employed people who have resided in the UK (residence in another EEA state qualifies so long as the worker/self-employed person returned to their home in the UK as a rule at least once a week) for more than two years prior to stopping work/self-employment due to permanent incapacity acquire a right of permanent residence. [4]

Where the reason for permanent incapacity is an accident at work or an occupational disease that would entitle the sufferer to an occupational pension, the two-year residence requirement does not apply. [5]

Family members of EEA workers/self-employed people who ceased activity in accordance with these conditions acquire a permanent right to reside in the UK provided they enjoyed a right to reside as their family members at the point the workers/self-employed people ceased activity. [6]

The period of residence required for a worker or self-employed person to acquire a permanent right to reside following retirement or becoming permanently incapacitated must be 'lawful' residence, ie residence that is in accordance with the Immigration (European Economic Area) Regulations and which satisfies all the conditions laid out in Directive 2004/38/EC (the Citizenship Directive), and not mere actual residence. [7]

Periods of inactivity due to illness or accident must be treated as periods of activity as a worker or self-employed person. [8] An EEA worker/self-employed person unable to work as a result of illness or accident will be temporarily unable to work if her/his inability to work is not permanent [9];  however permanent can mean unlikely to be able to work in the foreseeable future. [10]

Time spent by an EEA worker in a secure psychiatric hospital due to a hospital order made under the Mental Health Act 1983 was inactivity due to illness (a psychiatric disorder) and counted as a period of lawful residence for the purpose of acquiring permanent residence. [11]

The conditions above regarding the length of residence or period of employment/self-employment prior to retirement or ceasing work due to permanent incapacity do not apply where the EEA national is the spouse or civil partner of a British citizen. [12] So, a person who is married to or in a civil partnership with a British citizen who retires or ceases work due to permanent incapacity can acquire a permanent right to reside regardless of how long they worked or lived in the UK prior to ceasing work.

An EEA national (and her/his family members) who works/is self-employed in another EEA state acquire a permanent right of residence in the UK if s/he: [13]

• returns to her/his home in the UK as a rule at least once a week, and

• has/had been continuously working/self-employed and continuously residing in the UK for three years before working/being self-employed in the other EEA state

When an EEA worker/self-employed person is entitled to a permanent right to reside in the UK under more than one legal provision, for example as a permanently incapacitated worker/self-employed person as well as for having completed five years' lawful residence (see the page Five years' residence for more on this), s/he may rely on whichever is the most favourable provision to her/him.

In one case, it was held that the position of a EEA national who had acquired a right of permanent residence as a result of permanent incapacity was not affected by his subsequent completion of a five-year period of continuous residence. His non-EEA national wife therefore did not have to fulfil the more onerous requirement of residing with the EEA national for five years in accordance with the EEA Regulations 2006 in order to acquire her own permanent right to reside. [14] For more on the meaning of 'residing in accordance with the EEA Regulations 2006', see the page Five years' residence.