EEA/Swiss nationals have an initial right of residence in the UK for a period of three months without restrictions. They may then gain a right of residence in the UK if they undertake activity as a worker, self-employed person, student or are a self-sufficient person. These activities are often known as ‘exercising Treaty rights’. People who have exercised Treaty rights for a continuous period of five years in the UK will acquire permanent residence.
A person employed for a period of time to work for another person or a company and receives payment for their work is classed as a worker. The work undertaken must be an ‘effective and genuine’ activity and must not be on ‘such a small scale as to be regarded as purely marginal and ancillary’. Part-time workers may be considered workers for the purpose of the right to reside provided that the work is not marginal.
EU law does not specify a minimum level of earnings necessary to be considered a worker. It has been stated that decision-makers apply a Minimum Earnings Threshold which is £155 per week or £8,112 per year in 2016/7. Those earning more than the threshold are regarded as workers whereas the circumstances of those earning less than this threshold will be considered more closely to assess whether their activity is ‘genuine and effective’.
EU law recognises the need for a person to have time to find a job after arriving in another EU country in order to be able to exercise their Treaty rights as a worker. Under EU law, a person may seek employment for a period of six months and this period may be extended if they can provide evidence that they are continuing to seek work and have a genuine chance of being engaged. This is not reflected in the UK regulations that are applied. These allow (in addition to the initial three month right of residence) a period of 91 days to look for work if the person can evidence a genuine chance of being engaged at that stage and require stronger evidence for this period to be extended. The additional requirements may breach EU law.
There is no requirement to apply for residence documents, as the right of residence is acquired automatically through exercising Treaty rights, but these documents can help prove that the person has the right to reside in the UK. Most people may use an online application form to apply for a registration certificate confirming their right of residence or for documents confirming permanent residence. The online process allows family members to be included on the same form and the use of a local authority service for checking passports so that these can be retained while the application is considered. In other cases, people may use paper form EEA (QP) to apply for a registration certificate with separate forms for their family members. Form EEA (PR) is used for paper applications for documents confirming permanent residence.