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SCHEDULEE+W

PART 1E+WInterpretation

Interpretation: generalE+W

1.—(1) In this Schedule—

[F1“the 2020 Citizens’ Rights Regulations” means the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020;]

“Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council of 29th April 2004 M1 on the rights of citizens of the Union and their family members to move and reside freely in the territory of the Member States;

“EEA Agreement” means the European Economic Area Agreement signed at Porto on 2 May 1992 and which came into force on 1 January 1994;

[F2“EEA EFTA separation agreement” has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;]

“EEA frontier self-employed person” means an EEA national who—

(a)

is a self-employed person in the United Kingdom; and

(b)

resides in Switzerland or the territory of an EEA State F3... and returns to the person's residence in Switzerland or that EEA State daily or at least once a week;

“EEA frontier worker” means an EEA national who—

(a)

is a worker in the United Kingdom; and

(b)

resides in Switzerland or the territory of another EEA State F3... and returns to the person's residence in Switzerland or that EEA State daily or at least once a week;

“EEA migrant worker” means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;

“EEA national” means a national of an EEA State F3...;

“EEA self-employed person” means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;

“employed person” means an employed person within the meaning of Annex 1 to the Swiss Agreement;

“employment” means full-time or part-time employment;

“European Community” means the territory comprised by the Member States of the European Community as was constituted from time to time;

“EU national” means a national of a Member State of the European Union;

“European Economic Area” means the area comprised by the EEA States;

[F4“evacuated or assisted British national from Afghanistan” means a person—

(a)

who is a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a British subject under the British Nationality Act 1981 or a British protected person within the meaning of that Act;

(b)

who was either—

(i)

evacuated from Afghanistan by or on behalf of the United Kingdom, a North Atlantic Treaty Organisation member state, Pakistan, Uzbekistan, Tajikistan, Iran or Qatar during the period of the operation known as Operation Pitting, which began on 14th August 2021 and ended on 28th August 2021; or

(ii)

assisted by or on behalf of the United Kingdom, after 28th August 2021 and before 6th January 2022, to leave Afghanistan; and

(c)

who has been ordinarily resident in the United Kingdom and Islands since they were evacuated from or otherwise left Afghanistan;]

“family member” means—

(a)

in relation to an EEA frontier worker, an EEA migrant worker, an EEA frontier self-employed person [F5, an EEA self-employed person, or a relevant person of Northern Ireland who is treated as an EEA migrant worker or an EEA self-employed person by virtue of paragraph 7A(3)]—

(i)

the person's spouse or civil partner;

(ii)

direct descendants of the person or of the person's spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the person or the person's spouse or civil partner; or

(iii)

dependent direct relatives in the person's ascending line or that of the person's spouse or civil partner;

(b)

in relation to a Swiss employed person, a Swiss frontier employed person, a Swiss frontier self-employed person or a Swiss self-employed person—

(i)

the person's spouse or civil partner; or

(ii)

the person's child or the child of the person's spouse or civil partner;

(c)

in relation to an EU national who falls within Article 7(1)(c) of Directive 2004/38 [F6or, for the purposes of paragraph 10A, in relation to a relevant person of Northern Ireland who would fall within article 7(1)(c) of Directive 2004/38 if that person were an EU national or solely an EU national]—

(i)

the person's spouse or civil partner; or

(ii)

direct descendants of the person or of the person's spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the person or of the person's spouse or civil partner;

(d)

in relation to an EU national who falls within Article 7(1)(b) of Directive 2004/38 [F7or, for the purposes of paragraph 10A, in relation to a relevant person of Northern Ireland who would fall within article 7(1)(b) of Directive 2004/38 if that person were an EU national or solely an EU national]—

(i)

the person's spouse or civil partner;

(ii)

direct descendants of the person or of the person's spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the person or the person's spouse or civil partner; or

(iii)

dependent direct relatives in the person's ascending line or that of the person's spouse or civil partner;

(e)

in relation to a United Kingdom national, for the purposes of [F8paragraphs 10, 10B and 10E and for the purposes of paragraphs 10C and 10D in relation to persons settled in the United Kingdom]—

(i)

the person's spouse or civil partner;

(ii)

direct descendants of the person or of the person's spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the person or the person's spouse or civil partner.

“the Islands” means the Channel Islands and the Isle of Man;

“overseas territories” means Anguilla; Aruba; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Faroe Islands; French Polynesia; French Southern and Antarctic Territories; [F9Gibraltar;] Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten); Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the South Sandwich Islands; St Barthélemy; [F10St Helena, Ascension and Tristan da Cunha]; St Pierre et Miquelon; the Territory of New Caledonia and Dependencies; Turks and Caicos Islands and Wallis and Futuna;

[F11“parent” means a parent, guardian or any other person having parental responsibility for a child, and “child” is to be construed accordingly;

“person granted stateless leave” means a person who—

(a)

has extant leave to remain as a stateless person under the immigration rules F12...; and

(b)

has been ordinarily resident in the United Kingdom and the Islands throughout the period since the person was granted such leave;]

[F13“person with protected rights” means—

(1)
(a)

[F14a person within the personal scope of the citizens’ rights provisions who—

(i)

has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules;

(ii)

is an Irish citizen who, pursuant to section 3ZA of the Immigration Act 1971, does not require leave to enter or remain in the United Kingdom; F15...

(iii)

is an applicant for the purposes of regulation 4 of the 2020 Citizens’ Rights Regulations where the relevant period has not expired; or

(iv)

[F16otherwise has rights deemed to apply by virtue of any citizens’ rights deeming provisions; or]

(b)

a family member of a relevant person of Northern Ireland for the purposes of residence scheme immigration rules, where that family member has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules;]

(2)
(a)

[F17Article 18(2) and (3) (issuance of residence documents) of the EU withdrawal agreement;

(b)

Article 17(2) and (3) (issuance of residence documents) of the EEA EFTA separation agreement (as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020); or

(c)

Article 16(2) and (3) (issuance of residence documents) of the Swiss citizens’ rights agreement.]]

[F2“residence scheme immigration rules” has the meaning given by section 17(1) of the European Union (Withdrawal Agreement) Act 2020;]

F18...

“self-employed person” means—

(a)

in relation to an EEA national, a person who is self-employed within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement, as the case may be; or

(b)

in relation to a Swiss national, a person who is a self-employed person within the meaning of Annex 1 to the Swiss Agreement;

“settled” has the meaning given by section 33(2A) of the Immigration Act 1971 M2

[F19“specified British overseas territories” means Anguilla; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the South Sandwich Islands; [F20St Helena, Ascension and Tristan da Cunha]; and Turks and Caicos Islands;]

“Swiss Agreement” means the Agreement between the European Community and its Member States of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21st June 1999 and which came into force on 1 June 2002 M3;

[F2“Swiss citizens’ rights agreement” has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;]

“Swiss employed person” means a Swiss national who is an employed person, other than a Swiss frontier employed person, in the United Kingdom;

“Swiss frontier employed person” means a Swiss national who—

(a)

is an employed person in the United Kingdom; and

(b)

resides in Switzerland or in the territory of an EEA State F3... and returns to the person's residence in Switzerland or that EEA State daily or at least once a week;

“Swiss frontier self-employed person” means a Swiss national who—

(a)

is a self-employed person in the United Kingdom; and

(b)

resides in Switzerland or in the territory of an EEA State F3... and returns to the person's residence in Switzerland or that EEA State daily or at least once a week;

“Swiss self-employed person” means a Swiss national who is a self-employed person, other than a Swiss frontier self-employed person, in the United Kingdom;

[F21“United Kingdom national” has the meaning given by Article 2(d) of the EU withdrawal agreement;]

“worker” means a worker within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement, as the case may be.

[F22(1A) For the purposes of this Schedule, a reference to a “Member State” or “State” in Article 7 of Directive 2004/38 is to be read as including the United Kingdom.

(1B) For the purposes of this Schedule, a person is within the personal scope of the citizens’ rights provisions if that person falls within—

(a)Article 10 (personal scope) of the EU withdrawal agreement;

(b)Article 9 (personal scope) of the EEA EFTA separation agreement; or

(c)Article 10 (personal scope) of the Swiss citizens’ rights agreement.]

(2) In this Schedule, an area [F23other than the United Kingdom or Gibraltar] which—

(a)was previously not part of the European Union or the European Economic Area; but

(b)at any time before or after these Regulations come into force has become part of one or the other or both of those areas,

is to be considered to have always been a part of the European Economic Area.

Textual Amendments

F4Words in Sch. para. 1(1) inserted (with application in accordance with reg. 1(3)(f) of the amending S.I.) by The Education (Student Fees, Awards and Support) (Amendment) (No. 2) Regulations 2022 (S.I. 2022/534), regs. 1(1), 18(2)(a)

F8Words in Sch. para. 1(1) substituted (with application in accordance with reg. 1(3)(j) of the amending S.I.) by The Education (Student Fees, Awards and Support) (Amendment) (No. 3) Regulations 2021 (S.I. 2021/1348), regs. 1(1), 53(a)

Marginal Citations

M1OJ L158, 30.4.2004, p77-123.

M21971 c.77; section 33(2A) was inserted by paragraph 7 of Schedule 4 to the British Nationality Act 1981 (c.61).

M3Cm. 4904.

Interpretation: ordinarily residentE+W

2.—(1) This paragraph applies for the purposes of this Schedule to determine whether a person is to be treated as ordinarily resident in a given place.

(2) A person (“A”) is to be treated as ordinarily resident in the United Kingdom, the United Kingdom and Islands [F24, the territory comprising the United Kingdom, the Islands and the Republic of Ireland], in [F25the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland], in [F26the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories] [F27, the territory comprising the United Kingdom, the Islands and the specified British overseas territories], or in [F28the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories] if A would have been so resident but for the fact that—

(a)A;

(b)A's spouse or civil partner;

(c)A's parent; or

(d)in the case of a dependent direct relative in the ascending line, A's child or child's spouse or civil partner,

is or was temporarily employed outside the area in question.

F29(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place.

(5) In sub-paragraph (2)—

F30(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)“temporarily employed” includes in the case of members of the regular naval, military or air forces of—

(i)the Crown, any period which they serve outside the United Kingdom as members of such forces;

[F31(ia)the Republic of Ireland, any period which they serve outside the territory comprising the United Kingdom, the Islands and the Republic of Ireland as members of such forces;]

(ii)an EEA State or Switzerland, any period which they serve outside the territory comprising [F32the United Kingdom, Gibraltar,] the European Economic Area and Switzerland as members of such forces; and

(iii)Turkey, any period which they serve outside the territory comprising [F32the United Kingdom, Gibraltar,] the European Economic Area, Switzerland and Turkey as members of such forces.

Textual Amendments