HOW DO UKBA COUNT CONTINUITY OF RESIDENCE?

[Directive/2004/38/EC]

The calendar year approach cannot work and there is nothing in the ECIs suggesting that it would be used.

I am not sure what you mean by "cannot work". Do you think the ECIs suggest something else is being used?

So far we have three options, all possibly viable (to me at least):
(1) Calendar years
(2) Rolling window of one year (this can be difficult to calculate!)
(3) One year anniversary dates of the start of residence (it may be unclear to most people when this was in their case).

I think it is pretty unclearly specified. I think that benefits the applicant who can use the most favourable interpretation for their given situation.

[86ti]

The calendar year approach cannot work and there is nothing in the ECIs suggesting that it would be used.

I am not sure what you mean by "cannot work".

Please go through the calculation examples above. The effective residence needed for PR there ranged from just a little above 2 years (fysicus' example) to just a little below 5.5 years (my example). The problem in fysicus' example is whether the UKBA would accept the initial period as residence (and then we are back at the question what a temporary absence actually is). The only practical solution is a rolling window of five years which may just happen to coincide with your option 3. It's simple mathematics really.

[cutepearl]

I do not think the UKBA is supposed to hold travel information on persons falling under EEA regulations. The only data they could have would be from landing cards which however do not need to be filled out by those persons.

Well it's strange then if they don;t hold the data.. How do the HO determine your continuity of residence? How do they know if you have been living here for 5 continuous year??

I don't remember how long we have been away for and how many times a year...

[Jambo]

Well it's strange then if they don;t hold the data.. How do the HO determine your continuity of residence? How do they know if you have been living here for 5 continuous year??

I don't remember how long we have been away for and how many times a year...

That's why you need to provide proof in the application for exercising treaty rights + residence.
Dig up emails, flight tickets etc. Write the best you can remember. As long as you are under 6 months outside the UK each year, you are fine.

[Directive/2004/38/EC]

I do not think the UKBA is supposed to hold travel information on persons falling under EEA regulations. The only data they could have would be from landing cards which however do not need to be filled out by those persons.

This seems to get repeated so I think it is worth addressing here. I suspect this is quite wrong.

There is no rule that I know of that prevents UKBA from retaining entry and exit data about people falling under the EEA regulations. There is certainly no prohibition in EU law.

There are two obvious sources of data they can use, even if they do not use landing cards: PNR data from airline reservations, and the scan they make of all EU/UK/eeafamily passports when you clear immigration on arrival in the UK (this is for air arrivals, train arrivals, and ferry arrivals).

And if there is not a prohibition, and they have the data already being gathered, does anyone realistically think they are not retaining it? I would certainly keep the data if my job was a senior policy maker at UKBA. It would be needed for national security reasons at the very least.

Do not ever assume that your entry/exit into a country is not recorded, one way or another.

[cutepearl]

I do not think the UKBA is supposed to hold travel information on persons falling under EEA regulations. The only data they could have would be from landing cards which however do not need to be filled out by those persons.

This seems to get repeated so I think it is worth addressing here. I suspect this is quite wrong.

There is no rule that I know of that prevents UKBA from retaining entry and exit data about people falling under the EEA regulations. There is certainly no prohibition in EU law.

There are two obvious sources of data they can use, even if they do not use landing cards: PNR data from airline reservations, and the scan they make of all EU/UK/eeafamily passports when you clear immigration on arrival in the UK (this is for air arrivals, train arrivals, and ferry arrivals).

And if there is not a prohibition, and they have the data already being gathered, does anyone realistically think they are not retaining it? I would certainly keep the data if my job was a senior policy maker at UKBA. It would be needed for national security reasons at the very least.

Do not ever assume that your entry/exit into a country is not recorded, one way or another.

I think this makes sense But How can I get it from UKBA... I have heard that there is a form/address that I can request it from the UKBA for £10?

What does PNR mean ?

[mcovet]

another thing you guys seem to be forgetting that apart from the residence requirement, there is also the "exercise of treaty rights" requirement. Whilst those who are self-sufficient and have health insurance? shouldn't have a problem (another arguable point, why do you need CSI if you are outside the state) those workers would hardly be regarded workers for the periods of absence 6mths+ as hardly any employer would allow such a long leave, so what is the position of those people? If the UKBA asks for proof of continuous exercise of treaty rights (including the periods of absence), you can almost imagine their faces if you state that you didn't have to exercise treaty rights while absent... don't think this could go anywhere without a CJEU reference...

So, while the debate about physical presence in the UK is fun, don't forget the requirement to also have been exercising treaty rights CONTINUOUSLY for the period of 5 years...and for workers/self-employed this could present a BIG BIG hurdle.

As regards periods of absence, whether it's a rolling year (as in Schengen countries) or a static 6mths per year, hardly anyone will ever come across such a problem. And in my opinion (a very humble opinion) Article 11(2) of the Directive 2004/38 makes it clear that absences must not be more than 6 months PER YEAR, so it's like Schengen countries calculate a ROLLING year. Thus, as soon as there has been an absence of more than 6 months PER YEAR, the continuity has been broken.

Hope this clears up the debate about how to calculate the YEAR in question.

[fysicus]

another thing you guys seem to be forgetting that apart from the residence requirement, there is also the "exercise of treaty rights" requirement.

So, while the debate about physical presence in the UK is fun, don't forget the requirement to also have been exercising treaty rights CONTINUOUSLY for the period of 5 years...and for workers/self-employed this could present a BIG BIG hurdle.

Hope this clears up the debate about how to calculate the YEAR in question.

To be honest, it seems to me that you are actually creating more confusion here.
For the EEA4 applicant there is no requirement to exercise treaty rights, in fact he cannot even do that! The EEA national from whom he derives his residence rights needs to be exercising treaty rights, but that is a different person. So this is completely independent from the "six months in a year" absence rule.

[mcovet]

how am I creating confusion? I am referring to EEA nationals. The non-EEAs obviously will not need to "exercise Treaty Rights". Then again, mostly being married couples, which one of them would spend 2.5 out of 5 years away? They would be away mostly together and again, my comments related to EEA nationals.

Hope this cleared the "confusion" for you.

another thing you guys seem to be forgetting that apart from the residence requirement, there is also the "exercise of treaty rights" requirement.

So, while the debate about physical presence in the UK is fun, don't forget the requirement to also have been exercising treaty rights CONTINUOUSLY for the period of 5 years...and for workers/self-employed this could present a BIG BIG hurdle.

Hope this clears up the debate about how to calculate the YEAR in question.

To be honest, it seems to me that you are actually creating more confusion here.
For the EEA4 applicant there is no requirement to exercise treaty rights, in fact he cannot even do that! The EEA national from whom he derives his residence rights needs to be exercising treaty rights, but that is a different person. So this is completely independent from the "six months in a year" absence rule.

[fysicus]

Well, I don't think you really understand the discussion.
The examples given explore what the effect of various interpretations would be in the most extreme cases; not what normal people would do in normal circumstances.
And in particular the requirement on the EEA national to exercise treaty rights does not restrict the non-EEA family member with respect to his presence or absence in the UK, and is therefore irrelevant for the discussion and this explains why we 'forgot' about it.

[cutepearl]

And in particular the requirement on the EEA national to exercise treaty rights does not restrict the non-EEA family member with respect to his presence or absence in the UK, and is therefore irrelevant for the discussion and this explains why we 'forgot' about it.

How does it work? Does it mean that only the EEA national needs to be exercising treaty rights? Or both?

Thanks

[Directive/2004/38/EC]

Does it mean that only the EEA national needs to be exercising treaty rights? Or both?

In almost all mainstream cases, only the EEA national needs to be exercising treaty rights. What the non-EU family member does is totally irrelevant, so long as they maintain their residence in the EU host member state.

The only exception I know of is when the family breaks apart (divorce!) and the non-EU family member (may) be required to exercise treaty rights as part of "retention of rights".

[Directive/2004/38/EC]

What does PNR mean ?

http://www.papersplease.org/wp/2011/09/ ... about-pnr/

[joshuaaubin]

What about the contineous residence of non eea that is married to an eea with a permanent residence, will the eea with permanent residence continue to exercise treaty right? For the five years of contineous residence for the non eea even after absent for lesser than 6mths in a year? Bcus a member here say if you are talking about absent remember that the eea should be exercising treaty right.

[Directive/2004/38/EC]

If the EU citizen has PR, then they do not need to be exercising treaty rights. In that case the non-EU citizen just has to meet the residence requirements (i.e. no more than 6 months a year away, except for a one-off 12 month absence for an important reason)

[Directive/2004/38/EC]

UKBA appears to say (although maybe not) that they use a calendar year calculation:

1) Continuity of EU-law residence is not broken in EU law by absence of
less than 6 months "per year". How does UKBA interpret "per year"? Is
that a calendar year, a rolling one year window, or something else? I
assume there is a UKBA policy or consistent guidelines.

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 qualifying
period and consider each year in turn as to whether absences in that
particular year exceeded 6 months. For example, if the qualifying period
runs from 1st Jan 2005 to 1st Jan 2010, we would look at whether each
year from 1st January had more than 6 months absence.

[nonspecifics]

That's good you found an answer from UKBA, but they didn't specifically answer the question about whether it is a calendar year or not.

They were asked directly if it is a rolling year or calendar year or something else, but they don't answer that directly.

They gave an example 1 January to 1 January which would be a year and a day, but it is given as an example.

They don't say it must always be 1 January to 1 January calendar years; it could be they mean rolling one year windows, but they happened to choose 1 January as the start date which would also mirror calendar years.

[Directive/2004/38/EC]

Rereading what they wrote raises my doubts.

[eeaman01]

How can it raise doubts? If anything, it clarifies and erases doubts, in my opinion.

The UKBA is very clear. You, the "applicant" are claiming a "relevant five year period" during which you "have exercised Treaty rights for as a whole". UKBA will then "consider any absences, within that period".

So you claim D1 until D2 is your qualifying period, you supply documentation of exercising Treaty rights and then UKBA "look back at each year of the qualifying period and consider each year in turn as to whether absences in that particular year exceeded 6 months".

OK, so how do you consider "each year in turn"? You look at each year of that period. How many years are in that period? Five.

In spite of using an example which doesn't address your doubts (choice of January-to-January as opposed to something nicer like June-to-June), UKBA is making it clear that it's NOT calendar years, it's NOT a rolling window, it's something else: one-year periods of your five-year qualifying period.

If you still disagree, then you'd also have to start attacking UKBA's definitino of a "five-year" qualifying period. Should that mean 5 calendar years too? Of course not. The years are counted based on the start date of the qualifying period.

The question of whether your qualifying period starts on the date of your first arrival in the UK or on some other date is a question for a separate debate.

My 2 cents worth.

[EUsmileWEallsmile]

Some planets have a shorter year than earth. If you wish, one might try one. First though one has to claim it as Britain for her Majesty the Queen (oh, yes and get there).

[Directive/2004/38/EC]

A UKBA clarification:

I can confirm that we do not currently have any written guidance to
refer to you on this specific issue. However, I can confirm that the
approach that case workers take in practice is to count annual periods
from the date at which the 5 year period they are relying upon began.
This is consistent with the policy position.

I find it very interesting that they have no written guidance for caseworkers. How are they supposed to learn this stuff and work consistently?

UKBA confirms that they do look at the one year blocks that are anniversaries of the start-date of the 5 year period.

[nonspecifics]

Well done Directive in getting that information from UKBA.

Finally, we have an explanation about how they count the years of exercising Treaty Rights.

You deserve a big pat on the back and a round of applause.


So, if a person stated the first day of exercising treaty rights was 5 May 2006 the five consecutive years would run like this:

5 May 2006 to 4 May 2007

5 May 2007 to 4 May 2008

5 May 2008 to 4 May 2009

5 May 2009 to 4 May 2010

5 May 2010 to 4 May 2011

[Saladin0011]

How you said year is counted from first day that you came to UK but I have another question.
If I am here from let say 5th may 2009. Yes??
Ok
1st year 5.5.2009 to 5.5.2010 out from 10.10.2009 to 24.3.2010 = 5 months 14 days
2nd year 5.5.2010 to 5.5.2011 out from 10.10.2010 to 2.6.2011 = 7 months 23 days but reason is study or pregnancy (which is important reason)
3rd year 5.5.2011 to 5.5.2012 out from 10.10.2011 to 10.02.2012 = 4 months
4th year 5.5.2012 to 5.5.2013 out from 10.10.2012 to 10.01.2013 = 3 months
5th year 5.5.2013 to 5.5.2014 nothing

Is that 7 months ok if i prove that I was study, pregnant or long term ill??