Croatia has not yet been a member of the EU for five years, but it is nonetheless possible for Croatians and family members to acquire the right of permanent residence.
The right of permanent residence for EU citizens and their family members comes from Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States “the Directive”. Article 16 of the Directive states as follows:
General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.”
The right of permanent residence is set out at Regulation 15 (1). This states, so far as is relevant:
The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
An EEA national and their family member resides in the UK in accordance with the Regulations if they satisfy one of the relevant Regulations.
Residence prior to the commencement of the Immigration (European Economic Area) Regulations 2016 can be relied upon for the purpose of calculating period of residence in the UK as set out in Schedule 6 at Regulation 8:
8 Periods of residence prior to the coming into force of these Regulations
(1) Any period of time during which an EEA national (“P”) resided in the United Kingdom in accordance with the conditions listed in sub-paragraphs (2) or (3) is to be taken into account for the purpose of calculating periods of residence in the United Kingdom in accordance with these Regulations.
(2) The condition in this paragraph is that P resided in, or was treated as though having resided in, the United Kingdom in accordance with—
(a)the Immigration (European Economic Area) Regulations 2000(1); or
(b)the 2006 Regulations.
(3) The condition in this paragraph is that P resided in the United Kingdom in circumstances where—
(a)P was a national of a State which at that time was not an EEA State;
Residence Prior to Accession of Croatia to the EU on 1 July 2013
Regulation 8 of Schedule 6 does not refer to the family members of EEA nationals, in paragraphs 1, 2 or 3. However, it is cannot be the drafters’ intention that as a result of the new Regulations coming into force that every non-EEA national family member has to re-start their 5 year period to be relied upon for the permanent residence calculation on the date of commencement, (for most matters:) 1 February 2017. It is clear that the Regulation is drafted to focus on an EEA national since when an EEA national is a qualified person, their family member is thus also able to reside under the Regulations.
This interpretation would follow the approach of the Court of Justice decision of 21 December 2011 in Joined Cases C-424/10 and C-425/10 Tomasz Ziolkowski, Barbara Szeja, Maria - Magdalena Szeja and Marlon Szeja  ECR I-14035. In this decision, the CJEU recognised that firstly, permanent residence requires legal residence (paragraph 31), secondly, that this is subject to conditions (paragraph 36), and that those conditions are set out in the Directive (paragraphs 39-42), and thirdly, that:
“the concept of legal residence implied by the terms ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1).“
It would seemingly be contrary to EU law if a Croatian national could acquire permanent residence under EU law prior to Croatia’s accession, if his/her family members could not also rely on the same period, given the stated intention of the Directive us to enable integration into the host state, and emphasis on this throughout the free movement provisions and jurisprudence of the Court of Justice, is that integration occurs as a family.
Contact our immigration barristers
For expert advice on applying for permanent residence as a Croatian national or family member of a Croatian national, contact our immigration barristers on 0203 617 9173 or via our enquiry form.