When is an EEA National considered Resident?

[Rolfus]

For the third-country national family members of an EEA National to become resident in the UK on the basis of an EEA family permit, the EEA National must himself be resident. But how is this measured? Tax resident? Habitually resident as required for recourse to public funds? Meeting the same criteria as for establishing permanent residence? But would that be on the EEA route or the Immigration Rules route?

I am thinking of a family with homes in more than one country, and where the EEA National has to travel overseas on business say 200 nights per year.

Double taxation treaties make it clear that it is possible to be considered resident in several countries simultaneously!

[vinny]

For your residence in the UK to be considered continuous, you should not be absent from the UK for more than 6 months each year. However, longer absences for compulsory military service will not affect your residence. Additionally, a single absence of up to 12 months for important reasons such as pregnancy, childbirth, serious illness, study, vocational training or posting overseas will not affect your residence.

[Obie]

Regulation 5 (5) incorporate the rights of a frontier worker, to have the period they carried out activity in another member state to be counted as time spent as a worker in the UK. This essentially mean time spent in another memberstate working ,while residing in the UK, will be counted as time spend working in the UK, for the purpose of the community treaties.
Provided of course you come to the UK at least once a week after work in another member state, and can demonstrate that your main resident is in the UK.

[quote=" Regulations 5 Worker or self-employed person who has ceased activity"]
5.—(1) In these Regulations, “worker or self-employed person who has ceased activityâ€

[Rolfus]

Thank you for your replies, but I think they actually illustrate how undefined this issue is.

For us pedants, the following is an interesting discussion of the interplay between EU law and UK law with respect to the concepts of Residence and Habitual Residence, albeit in the context of divorce.

http://www.familylawweek.co.uk/site.aspx?i=ed1176

My interpretation of this article is that EU law has a clear concept of Habitual Residence, and that where EU law talks about Residence it is something different, ie physical presence. It is clear that at a particular time it is possible to be Habitually Resident without actually being Resident.

But this doesn’t help us much with understanding how much physical presence is required on the part of an EEA sponsor. Can it mean 365 nights per year? The Single Market Directives can hardly exclude travelling on business within the EU, or even outside the EU.

We know from the EU Residence Directive 2004/38 (that establishes residence rights for up to three months) that Residence can apply to periods of less than three months. Is there any reason to suppose that residence is not to be established day by day, or more appropriately night by night?

'Article 12, Retention of the right of residence by family members in the event of death or departure of the Union citizen', gives us some clues. On a strict reading, the Union Citizen’s family should perhaps be required to leave the host state with him on every occasion he leaves, unless covered by one of the exemptions.

Article 16.3 says in the context of establishing Permanent Residence :

General rule for Union citizens and their family members …3. Continuity of residence shall not be affected by temporary absences not exceeding a total of 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.

Which is reflected in the UK rule quoted by Vinny. And Obie has extended this by quoting the exemption for frontier workers.

So that seems to nail it down.

Except, do EU rules really say that a businessman whose business takes him abroad more than 183 days per year cannot keep his family with him at home, where he is perhaps Habitually Resident? And is the businessman who travels 155 days per year precluded from taking a month’s overseas holiday?

And where does it say that the EEA sponsor has to be ‘Continuously Resident’? I don’t think that Continuous Residence can be any more applicable than Habitual Residence.

[Rolfus]

I asked the UKBA European helpline.

My question was: my non-EEA partner (who holds an EEA family permit) and I, are going to come to the UK for about 6 weeks in the summer. She wants to submit a request for a Resident Card (EEA2) as soon as she arrives, but we will leave again to do one more academic year elsewhere in the EU before moving back permanently. Is that all right?

Answer: no problem at all, just submit the EEA2 with the supporting documents and that will be fine.

Does anyone believe this advice?

Who wants to bet that if it does work, at some future date we will have to produce proof that we had UK comprehensive medical insurance for the year we were not living in the UK!

[John]

Hmmm .... well nothing to stop the application being made, but as the EEA Citizen will not be exercising Treaty Rights in the UK (apart from up to 3 months as a tourist), I cannot see how that application can possibly succeed.

[Rolfus]

John, thank you for this contribution.

EU Residence Directive 2004/38 establishes residence rights for up to three months. Therefore it must be possible to be 'Resident' despite the elapsed time being less than three months. These are clearly treaty rights that the EEA citizen is exercising.

My case is actually a Surinder Singh case, so Eind makes it clear that what is required is to return from exercising treaty rights elsewhere, rather than exercising rights in one's state of nationality.

The difficulty with analysing this situation is that the plain meaning of 'resident' has a sense of the long term. But in this context it must have a special meaning. The rules allow an absence of up to six months per year. So it can't be necessary to be present for more than six months in the first year before being considered 'resident' or the rule would be meaningless. And 2004/38 makes clear that it can be less than three months. So if the period is less than 13 weeks why not 6? or 1?

[John]

My case is actually a Surinder Singh case

It might have been helpful to mention that earlier.

[Rolfus]

I think it was an irrelevant aside in my last post on this thread. The UKBA don't seem to take any notice of Eind anyway.

The interesting point I was trying to test is whether the first three months residence under 2004/38 are 'treaty rights'. I believe they must be. That is important as it shows that 'residence' can be established in a period of less than 13 weeks.

[Obie]

The UKBA don't take much notice about the Eind ruling but the courts certainly do, as they are bound by it. Had they not, then there will be a cause for concern.

I believe the essential part of Singh and EInd, is that the Union Citizen in these cases intended to return to their home land permanently, which is why their 3rd country national family members were able to secure residency. Had it been they wanted to reside for 6 weeks and head of to another member state, there is nothing to compel the member state to issue a Residence Card to the 3rd country national.

Residence card is issued for residence longer than 3 months, once the conditions are met for acquiring it. If the proposed residence is for 6 week, and then will commence again after a year, then i am not convince anything in Eind, Singh or Community law, permits a member state to issue residency. I will be surprised if it does.

[Rolfus]

EN (Continuity of residence – family member) Nigeria [2011] UKUT 55 (IAC)

The Findings of the Immigration Judge


4. The judge was satisfied that from the date of the marriage in October 2003 to November 2006 the appellant’s wife was working in the UK for the purposes of the 2006 Regulations but he found that since 2006 she had spent a substantial proportion of her time working in Sweden. He was not satisfied applying the test in reg. 3(2)(a) that since 2006 she had not been absent from the UK for a period which did not exceed six months in total in any year and found that the continuity of her residence with the appellant in the UK had been broken. This led him to conclude that the appellant had not been able to show that he had been residing in the United Kingdom with his wife in accordance with the 2006 Regulations for a continuous period of five years as required by reg. 15(1)(b).

5. However, the judge went on to say in para 30 of his determination that he was satisfied that the appellant’s wife had been working since 2006 not only in Sweden but also in the UK and was exercising treaty rights in the UK. She was therefore a qualified person under reg. 6 and it followed that the appellant as her family member had the right under reg. 14(2) to reside in the UK but he was not satisfied that he was entitled to permanent residence and his appeal was dismissed.

So if you come to work in the UK in a sales job that takes you abroad for 183 days per year your family is snookered!

And the ruling might not apply in Surinder Singh cases. There is nothing in Regulation 9 that requires a British national to be resident more than 6 months per year.

[Directive/2004/38/EC]

Residence card is issued for residence longer than 3 months, once the conditions are met for acquiring it. If the proposed residence is for 6 week, and then will commence again after a year, then i am not convince anything in Eind, Singh or Community law, permits a member state to issue residency.

Remember that a family member can not be required to get a Residence Card until after the first 3 months. But there is nothing to prevent a member state from offering a Residence Card as soon as you get off the plane. In fact the Directive is very clear:

Article 37 - More favourable national provisions
The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

Germany, for instance, seems to issue Residence Cards without evidence that the EU citizen is working. This Munich web page describes the documents required for the family member to get a Residence Card, which the Germans call an "Aufenthaltskarte" http://www.muenchen.de/Rathaus/kvr/ausl ... erger.html

4. Familienangehörige und eingetragene Lebenspartner aus Drittstaaten
Familienangehörige oder eingetragene Lebenspartnerinnen und Lebenspartner von freizügigkeitsberechtigten Unionsbürgerinnen und Unionsbürgern, die nicht selbst Unionsbürger sind, benötigen grundsätzlich ein Einreisevisum. Nach der Einreise erhalten sie in der Ausländerbehörde eine Aufenthaltskarte.

Bitte bringen Sie folgende Unterlagen mit:

- vollständig ausgefülltes Antragsformular [ a completed application ]

- gültiger Nationalpass oder Personalausweis [ passport or ID card]

- ein aktuelles biometrietaugliches Passfoto (Fotoautomaten befinden sich in der Ausländerbehörde) [ a recent passport photo - there is a machine in the Munich office it points out ]

- Heirats- bzw. Partnerschaftsurkunde [ marriage certificate ]