Tue 09-Feb-10 10:56 AM by ros.white

(edited to shorten link)

I would take issue with some of this guidance. See the rightsnet news story here: rightsnet news story - dwp guidance on right to reside

Obviously, on certain issues the DWP take a different view of the law to advisors.

However, it seems to me that the DWP are wrong to advise in the Annex of Frequently Asked Questions that the Immigration (EEA) Regs 2006 are more generous than Directive 2004/38 EC. See para 2 of the annex.

I think it clear that this is beyond a difference of opinion where different views are taken and in fact the DWP should be clear that their view does not represent the currently binding law.

It is strongly arguable that someone who had any EU law right of residence (even prior to the coming into force of the 2000 Regulations and even if that was a right of residence (eg such as a jobseeker) that was not provided for i n the 2000 Regs.

CIS/4299/2007 (appealed to the Court of Appeal in Lassal) binds LA decision makers to accept this.

This is discussed in Welfare Rights Bulletin 209 (April 2009).

It is also the view taken in the Sweet and Maxwell volumes- Vol 2 at page 312, 3rd paragraph.


It may eventually be held that any 5 year presence in the UK will meet the test for permanent residence or that a domestic law right of residence meets the test. The law on these points is less clear currently. However, I think it can certainly be said that the DWP advice is wrong at least for the reasons described above.

So just to be clear at present the following is binding on LAs:

Anyone who has resided in UK for a 5 year period in the exercise of some EU treaty right (jobseeker included), whether some or all of that period is prior to October 2000 or not, and has not left the UK for a continuous period over 2 years since then will have a permanent right of residence.

Martin