2004/38/EC Art 17 Exemptions for no longer working

[Rolfus]

DIRECTIVE 2004/38/EC
Article 17 Exemptions for persons no longer working in the host Member State and their family members (my emphasis)
1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:
(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

The Immigration (European Economic Area) Regulations 2006
"Worker or self-employed person who has ceased activity"
5. —(1) In these Regulations, "worker or self-employed person who has ceased activity" means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the conditions in this paragraph if he—
(a) terminates his activity as a worker or self-employed person and—
(i) has reached the age at which he is entitled to a state pension on the date on which he terminates his activity; or
(ii) in the case of a worker, ceases working to take early retirement;
(b) pursued his activity as a worker or self-employed person in the United Kingdom for at least twelve months prior to the termination; and
(c) resided in the United Kingdom continuously for more than three years prior to the termination.

In transcribing the EEA law to British law, "the preceding 12 months" has been replaced with "twelve months prior to". 'Prior' does not have the sense of 'immediately prior'. eg Prior convictions.

Consider an EEA citizen who has at some earlier period resided in the UK continuously for more than three years, and ceased activity to take early retirement at the end of at least 12 months employment in the UK. He or she moves elsewhere in the EEA to establish EEA rights, and then returns to the UK with third country family members on EEA family permits. They are then issued with EEA2 residence cards.

How long will the family members have to wait to become Permanent Residents?
-The normal 5 years?
-Immediately Permanent because the exemption applies?
-Would the EEA citizen have to work or be self-employed for another 12 months, then cease activity again thereby triggering the exemption?
-Would they have to reside for three years, the EEA citizen being employed in the last year?

[Rolfus]

This is the Department of Work & Pensions text from their Decision Maker's Guide Volume 2, Chapter 7, Part 3. http://www.dwp.gov.uk/publications/spec ... uide/#vol2

Persons exempted from the general rule on the right of permanent residence
[See DMG Memo 03/11] The general rule on the right of permanent residence requires that EEA nationals and their family members have resided in the UK for five years (see DMG 071240). Workers or S/E persons, and their family members, who have ceased activity acquire the right to reside in the UK permanently without that requirement. To be a ''worker or S/E person who has ceased activity'' a person must be an EEA national who either
1. stops working and
1.1 has reached the age at which he is entitled to a state pension on the
day he stops working or
1.2 if he is a worker, stops working to take early retirement and
2. was working in the UK for at least twelve months before stopping and
3. resided in the UK continuously for more than three years before stopping or
4. stops working in the UK because of a permanent incapacity to work and
4.1 has resided in the UK continuously for over two years before stopping or
4.2 the incapacity resulted from an accident at work or an occupational disease entitling him to a pension payable in full or in part by an institution in the UK
5. a person who was the family member of a worker or S/E person where 5.1 the worker or S/E person has died
5.2 the family member resided with him immediately before his death and
5.3 the worker or S/E person had resided continuously in the UK for at least two years immediately before his death or the death was the result of an accident at work or an occupational disease.
Where the spouse or civil partner of the worker or S/E person is a UK national the conditions on length of residence or time working will not apply.

What is interesting is that in Paragraphs 2 & 3 the Regulations have been transcribed as "before stopping" which is different from the text in 5.2 & 5.3 which says "immediately before..."

[Directive/2004/38/EC]

Nice spot!

It looks like the UK, in the SI which transcribes Directive 2004/38/EC, allows permanent residence for people who are retiring and have (at some point) previously worked in the UK for a year and resided for 3 continuous years. And this of course applies to their non-EU family members.

[lolabora1]

Has this conclusion been ratified? As you explain it, I see this can be applied to British citizens (as if they were EEA nationals) who returned to the UK after having exercised treaty rights in another EEA country, and continue working in the UK shortly before fulfilling the conditions in Regulation 5(2)(a)(i), should be able to demonstrate the conditions as to the length of residence and activity required in 5(2) and (3) simply by quoting any previous time of residence and activity in the UK prior to having exercised treaty rigths in the third coutry.

I am of course here assuming, and correct me if I am wrongly assuming it, that the British citizen needs to comply to 5(2) and (3). If the British citizen does not need to comply with 5(2) and (3) to qualify as a person who has "ceased activity", would it be reasonable to conclude that it suffices for them to meet Regulation 5(2)(a)i for their family members to aquire the right of Permanent Residence? Do you have any information on this regard?

[secret.simon]

Please do not revive threads that are years old. Wait for people to respond in your thread. This thread is now locked.