Permanent Residence Question

[Rory4111]

I am a British citizen with an American wife. We took the 'Surinder singh' route to get her the right to live with me in the UK, and she now has a five year residence permit as a family member of an EEA citizen.

We are now thinking about the requirements for permanent residence after five years. The EEA Guidance Notes say that you need to be a 'continuous resident' of the UK, which means "you should not be absent from the United Kingdom for more than six months each year."

How is this measured? Do they mean six months within a calendar year? Or do they mean six months out of a year from the date the permit was issued? How do they count where each year starts and ends?

Also, can we split the six months across the year, i.e. leave the UK for three months, then return for three months, then leave for three months again, all in the same year?
Like this:
(----one year----)(----one year----)
###. . . . ###. . .###
3mo. . . 3mo. . .3mo
absence absence absence

Or this:
(----one year----)(----one year----)
. . . ###. . . .######. . . . .###
. . . 3mo. . . . 6mo. . . . . 3mo
. .absence. . absence. . absence

Can we use the last six months of one year and the first six months of the next to take a whole year away from the UK?
Like this:
(----one year----)(----one year----)
. . . . . . .######|######
. . . . . .6months|6months

Or is it more like this where once we have left the UK once we have to wait six months before we travel again?
(----one year----)(----one year----)
. . . . . . . . . ###. . . . . . .######
. . . . . . . . .3mo. . . . . . . . 6mo
. . . . . . . absence. . . . . .absence

Thank you

[Lucapooka]

Generally, the yearly cycles would commence from the time she entered the country. The fact that an application for a residence permit might be emitted some months later from the date of her entry would be discounted.

[toofan]

in a year if you are absent from uk maximum 6 months you will be fine.
you must keep 6 months residence in uk .

only exceptions are crown services etc .

[EEA_confused]

Hi,
I was about to open a topic about a similar question so I'll queue my post here.

I'm an EEA citizen and I'm in UK from 07/10, now, I travel frequently for work outside UK but short visits to customers. I have always been under the 6months threshold.

This year I might exceed that.

From the guide to EEA I can read

For your residence in the United Kingdom to be considered continuous, you should not be absent from the United Kingdom for more than six months each year. Longer absences for compulsory military service will not affect your residence. Additionally, a single absence of a maximum of 12 months for important reasons such as pregnancy, child birth, serious illness, study, vocational training or posting overseas will not affect your residence.

Few questions:

- the year span start from July in my case ? So If I do 3 months before and 3 after July they will count as 3 and 3 in two separate years ?

- If you are out of UK for work reason in different occasions for more than 6months in total, can you still meet the requirements for permanent residency ? Or it doesn't matter and it is for any kind of absence ? (I mean I have payslips to prove I'm going for work)

- Do I need to list all the absences from UK in the permanent residence form even if for work reason ? Or just the absences for personal reasons ?

- Is it still possible to apply at the Croydon office or the only way is to send the documentation ?





Thanks

[Rory4111]

Hi. Thanks for the replies, but i'd like to followthis up because some of the most important questions I had still haven't been answered.

My greatest concern is about the conditions under which my wife and I would be considered 'continuous residents' of the UK for our five year probationary period.

The EEA Guidance Notes say that to be considered a continuous resident "you should not be absent from the United Kingdom for more than six months each year."

Assuming Lucapooka is correct in saying that the yearly cycles start from when my wife entered the country, e.g. October 2013 - October 2014, and so on, would it be possible to leave the country from July 2014 to March 2015, for example, a total of eight months, because that makes up only three months absent in the first year and five months in the second year? Or would that invalidate our status of continuous residents because we were absent for more than six months at one time?

Many thanks.

[dalebutt]

If I have understood you correctly, if you stayed more than 6 months outside of the UK, it will have broken your continuous 5 years residence, you cannot carry-over unspent time from previous years, doing that will effectively reset the clock towards PR. Except in cases of child bearing would such a break be permitted AFAIK.

What lucapooka said is the very correct interpretation of the rules, rights are automatically obtained, EEA2 vignette does not give those rights, it is rather a confirmation of the right, so the rights kick immediately upon entry.

[Rory4111]

Hi dalebutt, thanks for the reply.

I'm not actually suggesting that I would be carrying over unspent time from previous years, what I am saying is that I would be spending three months abroad in the first year, and five months in the second year (therefore not being absent from the UK for more than six months in one yearly cycle).

However, the three months would be at the END of the first yearly cycle (July - October 2014) and the five months would be at the START of the second yearly cycle (October 2014 - March 2015) totalling EIGHT months of continuous absence.

Is this permitted?

[dalebutt]

No, it will mean you have broken residence.

[Rory4111]

Thanks for the information.

I still don't completely understand the criteria for retaining continuous residence. So, if more than six months absence in one go is not permitted, even if it is across two year cycles, what if the following happened (assuming my wife initiated UK residence in October 2013):

We leave the UK in July 2014 and return five months later in December 2014.

We then leave again in February 2015 for two months.

Many thanks.

[dalebutt]

Continous residence will mean from the date your residency started, your one year residence will be October 2013 to October 2014, you cannot count the previous months when you have not been resident in the UK to your advantage, it doesn't work like that. Your 5 year residency will be counted from say you arrived October 2013, to October 2018, the months preceding October 2013 have no effect with regards to your wife's residency.

[Rory4111]

Hi, dalebutt.

Yes, I didn't think that months previous to our residency commencing could be counted towards my five year residency. My question was the following hypothetical situation:

We leave the UK in July 2014 and return five months later in December 2014.

We then leave again in February 2015 for two months.

My reasoning behind this question is that, since our residency started from October 2013, in the first year cycle (October 2013-October 2014), in this situation we would have been absent for three months (July-October) in the first year cycle. In the second year cycle (October 2014-October 2015) we would have been absent for four months (October-December 2014 and February-April 2015). Is this acceptable?

Many thanks

[dalebutt]

I think I have explained that up there, to be clear, in the scenario you have described, you wouldn't have broken residence.

[dalebutt]

When considering an application for permanent residence UKBA will look at the relevant five year period that an applicant claims to have exercised Treaty rights for as a whole and will consider any absences,within that period. So we would look back at each year of the qualifyingperiod and consider each year in turn as to whether absences in thatparticular year exceeded 6 months. For example, if the qualifying period runs from 1st Jan 2005 to 1st Jan 2010, we would look at whether eachyear from 1st January had more than 6 months absence. 

https://www.whatdotheyknow.com/request/ ... ent_evalua

[Mymorg]

"Listening" in on this conversation it looks to me that there are in fact two rules, rather than the one "do not stay outside the uk for more than 6 months out of the year. Maybe I'm wrong, but from what you all said it looks like you mean, you must not only stay in the uk 6 months out of the year but also come back to the uk WITHIN 6 months or roughly 185 days, otherwise the clock for permanent residence will be reset. Is this true? No matter what constitutes the start of a year, it seems that a period exceeding six months continuously outside of the uk will void ones stake for permanent residence. If the year goes by entrance to the uk, for example, October 10 2013 to October 10 2014, being one year... One could not stay outside of the uk for six months in 2013-2014, and then... Once the clock is reset (being October 2014) another CONTINUOUS 6 months within October 2014-2015... So, in essence, six months out of the year must be withing the uk, but also, the law would be anything exceeding a total of 6 months OUTSIDE the uk consecutively would also "reset the clock" am I wrong here? If as you're saying dalebutt, that the home office views each year on an individual basis then being away from the uk for essentially a year, BETWEEN two years would not "reset the clock"?
It's incredibly confusing to me. I would just like to know how long, hypothetically, one could stay outside of the uk consecutively without losing their right to permanent residence... If the date of entry constitutes the start of the clock.

[Jambo]

You can argubely choosing when the 5 years start as long as you meet the requirement. You can be absent for 6 months, come back for one day and then be absent for another 6 months. That's within the rules.

[rosebead]

I would've thought "6 months a year" as the Directive states would mean exactly that. So if your yearly cycle is January to January, I'd imagine you could go away in September of one year and be able to come back in July of the next year at the very latest. So your time away would look like this:

cycle A: September to January = 4 months

cycle B: January to July = 6 months

Thus it's 10 months away in total, but in each yearly cycle it only amounts to 4 months away in one cycle, and 6 months away in the next cycle.

[Mymorg]

Thanks so much for that, it's a lot clearer now

[rosebead]

I emailed Your Europe about this question as it puzzles me too, especially because the Directive doesn't clearly define what "6 months a year" exactly means. Here's my question and their answer:

My question:

In Article 16(3) of Directive 2004/38 it states that temporary absences of 6 months a year would not break the continuity of your residence in order to qualify for permanent residence status. So if you entered your host country in the month of February, each "annual period" for you would then run from February of one year to February of the next year, am I correct? Would I be right in saying in that case that if you went away in say September of one year, you would be able to come back in August of the next year at the very latest? So your time away would look like this:

In this annual period: September to February = 5 months

In the next annual period: February to August = 6 months

Thus it's 11 consecutive months that you've been away, but in each annual period it only amounts to 5 months away in one period, and 6 months away in the next period. Would this kind of absence still qualify you for permanent residence status? Or is it the case that you cannot be away for more than six CONSECUTIVE months? If not that then is it that you cannot be away for more than 6 months in total in any given 12 month period whether it coincides with your "annual periods" or not? Please could you clarify, it is confusing.

Their answer:

In order not to lose your right of residence in another EU country you would need to be outside the country for less than 6 months in a given year or for a period not exceeding 12 months in total for serious reasons such as pregnancy, military service or posting abroad (Article 16 of Directive 2004/38 applies).

Therefore, a consecutive period of absence of 11 months would be allowed once for serious reasons during the five year period that is taken into account for calculating permanent residence.

In recent correspondence with the UK s Home Office, the European Operational Policy Team stated as follows:

The Directive, regulations and associated guidance do not specify exactly when any year is calculated from but caseworkers are advised to consider the 5 year period counting back from the date PR is automatically acquired. For example, if PR was acquired today, the countback for absence purposes would be in yearly blocks from 19 May 2009 to 19 May 2014 (19 May 2009 to 19 May 2010 and so on).

Chapter 6 of the European Casework Instructions dealing with permanent residence currently instructs caseworkers that Continuity of residence is not affected by temporary absences (generally not exceeding 6 months per year) :
https://www.gov.uk/government/uploads/s ... apter6.pdf

While the above rules apply for the UK, they do give a useful indication of how the Directive would be applied in your situation.

So judging from that, Your Europe seems to think that there shouldn't be any absences of more than 6 months in a GIVEN year. The UK just looks at the months you are absent in EACH yearly block. That cleared up the confusion then .

[EEA_confused]

Anyone has answers for me ? please help......

[logical_1]

Would the continuity of residence be broken if non-eu and eu partner both left the country for 12 consecutive months for study. The only person who will be studying would be the non-eu partner.
Also after being away for 12 consecutive months, would a person be able to go on short holidays which would be less than 6 months in the years to come.

To break it down for example:

Residence card issued in let's say September 2013
12 month continuous absence from September 2013-September 2014
Short holidays with duration less than 6 months from September 2015

With the dates mentioned above could someone please be able to clarify if what's mentioned above would break the continuity if residence.
Thanks in advance

[chaoclive]

I have heard that 6 months continuous absence is enough to break residence, never mind 12 months!

[logical_1]

I have heard that 6 months continuous absence is enough to break residence, never mind 12 months!

I'd always thought that single absence not exceeding 12 months is fine for important reasons. However, I'm not sure if one can be away for short visits to other countries after being away for 12months. That's what I wanted to know.

[noajthan]

Would the continuity of residence be broken if non-eu and eu partner both left the country for 12 consecutive months for study. The only person who will be studying would be the non-eu partner.
Also after being away for 12 consecutive months, would a person be able to go on short holidays which would be less than 6 months in the years to come.

To break it down for example:

Residence card issued in let's say September 2013
12 month continuous absence from September 2013-September 2014
Short holidays with duration less than 6 months from September 2015

With the dates mentioned above could someone please be able to clarify if what's mentioned above would break the continuity if residence.
Thanks in advance

Yes continuity of residence of a person holding a RC (and so who does not have settled status in UK) would be broken by an absence from UK of 1 year.

Continuity of EU-law residence (in UK) is not broken in EU law by absence of less than 6 months per year.

[Barbora]

Hello. I have a similar problem, can anyone please please clarify. I'm trying to excercise my Treaty Rights (I have been living in the UK for 12 years now) and during my qualifying period I have not spent more than 6 consecutive months/6 months in 12 months qualifying period outside of the UK. I have, however, spent 11 months out of the UK after the qualifying period. The application guidlines state that unless I haven't spent more than 2 years away from the UK after the 5 years qualifying period I'm relying on, I am still eligible to apply for PR. My question is: one of the first questions in the online application form is 'have you spent more than 6 months away from the UK'. Does this mean 'during the qualifying period' or anytime at all? Thank you very much to anyone who can help.