Post
by LilyLalilu » Mon Jan 18, 2016 11:30 pm
Just in case this may be relevant to anyone else in a similar situation who is confused by the DMG, this is the reply to this query I received from YourEurope Advice/Solvit: (sorry, a bit lengthy^^)
"According to this official guidance published by the Department of Works and Pensions, spending a few days or a few months outside the UK, whilst not constituting a break in the continuity of your residence, would still delay the completion of the required time spent in the UK which must be 5 years. We must highlight that the Department of Works and Pensions does not administer or apply the Directive with respect to the issue of a certificate of permanent residence. Accordingly, the link and guidance referred to in your post would not be used by the Home Office caseworkers. This guidance is therefore outside the scope of guidance which the Home Office would be following.
Be that as it may, we must also advise you that the guidance in question appears to be incompatible with EU law, inasmuch as it represents an unlawful restriction to the notion of continuity of residence as provided under Directive 2004/38. We must also highlight that caselaw from the Tribunal appears to be in conflict with the guidance excerpted in your post: Babajanov (Continuity of residence - Immigration (EEA) Regulations 2006) [2013] UKUT 00513 (IAC). Eligibility for permanent residence in the UK under Article 16 Directive 2004/38 does not mean that you have to "clock" 5 years of physical residence in the UK, in accordance with the terms of Article 7 Directive 2004/38. This is precisely why both Articles (11 and 16 of Directive 2004/38, stipulate that continuity of residence is not broken; meaning that within the period of 5 years residence, the absences will neither break the continuity of residence, nor push it back). Were this to be the criteria, the anomaly would be that all other applications for residence under UK law, whether for immigration purposes or nationality purposes, would be conducted under a broader criteria than applications under EU law. The contention made by the DWP that this view is supported by the text of the Directive is misconceived, as highlighted above.
Article 16 Directive 2004/38 provides that the continuity of residence shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country". To draw from the above cited provision that permanent residence is achieved by the clocking of the exercise of rights of residence in the UK in accordance with article 7 is to draw a restrictive interpretation, which we reiterate is incompatible with caselaw under Metock (Case C 127/08)."
All information given is just my opinion as a member of this forum and does not constitute immigration advice.
