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Permanent residence for EEA nationals and their families

chacha
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Benefits dept - Hertsmere Borough Council

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http://www.bailii.org/uk/cases/UKUT/IAC/2011/00474_ukut_iac_2011_iti_nigeria.html


Quote:
4) When assessing whether the applicant/appellant family member has resided in the UK continuously for the purposes of qualifying for permanent residence, it must be recalled that regulation 3(2) of the 2006 Regulations provides that continuity of residence is not affected by (a) periods of absence from the United Kingdom which do not exceed six months in total in any year; (b) periods of absence from the United Kingdom on military service; or (c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy, childbirth, serious illness, study or vocational training or an overseas posting (Article 16(3) of the Directive is to similar effect).


Continuity of residence

3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under regulation 5(1) and regulation 15.

(2) Continuity of residence is not affected by —

(a)periods of absence from the United Kingdom which do not exceed six months in total in any year;

(b)periods of absence from the United Kingdom on military service; or

(c)any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

(3) But continuity of residence is broken if a person is removed from the United Kingdom under regulation 19(3)

I’m at a loss as to how the circular has not taken into account the above decision. Reg 3 of the EEA regs, referring to regs 5 and 15 of the same, clearly, in my mind, confirm that those type of absences from the UK will count towards 5 years for perm res.

Any thoughts?

davidsmith
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Welfare Rights, Brighton Unemployed Centre Families Project

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Do you have a link to the circular?

chacha
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Benefits dept - Hertsmere Borough Council

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Amanda JB
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They say the same in DMG 03-11

5 The term “resided legally” means residence in a host Member State in accordance with the conditions laid down in the Directive1. Temporary absences, which do not exceed 6 months in any year, will not break continuity of residence: nor will some longer absences for certain specific reasons2. Although such absences do not break the continuity of residence requirement, the period of absence does not count towards the accrual of the 5 years continuous residence3.

1 Directive 2004/38 (EC) preamble 17 & McCarthy v SSHD [2008] EWCA Civ 641; 2 Directive 2004/38 (EC), art 16(3); 3 CIS/2258/08

chacha
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Amanda JB - 30 July 2015 12:11 PM

1 Directive 2004/38 (EC) preamble 17 & McCarthy v SSHD [2008] EWCA Civ 641; 2 Directive 2004/38 (EC), art 16(3); 3 CIS/2258/08

Not quite sure how both cases make any difference, in McCarthy, the CA and ECJ both found that she never exercised treaty rights, so they never resided under the conditions of the directive.

In CIS/2258/2008, I think that was wrongly decided, shame it wasn’t appealed, Judge Jacobs never even mention reg 3 of the EEA regs.

HB Anorak
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The same point is more strongly reasoned in another UT immigration chamber case: Babajanov, who was absent for longer than 12 months but fortunately for him reached the five year finishing tape earlier in the absence - the point being that the absence was part of the five years.  Residence is a more durable concept than day to day presence

chacha
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I queried this with the circular’s technical team,  see the response below.


Please find attached a link to Home Office guidance on “European Economic Area nationals qualified persons” - pages 49 – 51 which was published in April this year.


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421238/Qualified_Persons_v3_0.pdf

This provides additional guidance on treating absences abroad or gaps between periods of qualified residence to maintain ‘continuity’ of residence. These circumstances allow an EEA national to resume the process of acquiring 5 years of qualified permanent residence without “re-setting the clock” each time they return to the UK to resume qualified residence. In effect, allowing the 5 year permanent residence qualification to be served over a longer period of time.

Absences abroad or gaps between periods of qualified residence which do not meet the continuity criteria mean that the EEA national would have to restart the 5 year permanent residence qualification process again when re-establishing qualified residence in the UK (e.g. commencing employment after a period of inactivity or returning to the UK as a student after an extended absence abroad).

As to how the circular interacts with case law, most Immigration cases are led by the Home Office. Please contact the HB policy team or Home Office policy