UKBA undermines the rights of Permanent Residents

[fysicus]

Recently my wife received a Permanent Residence Card as a result of a successfull EEA4 application. Together with it she received an explanatory letter, which, however, in my opinion, seems to restrict the right of Permanent Residence far more than the law allows!

WHAT HAPPENS IF I LEAVE THE UK?
If you leave the United Kingdom, you will normally be re-admitted as a person with a right of permanent residence provided that:
• you did not receive assistance from public funds towards the cost of leaving this country;
• you had a right of permanent residence when you last left;
• you have not been away for longer than 2 years.
In order to be considered as permanently resident here you will have to be able to show that you are habitually and normally resident in this country, and that any absences have been of a temporary or occasional nature.
You will not be re-admitted as a person with a right of permanent residence if you are resident overseas and only return here for short periods.

I don't see how the text marked in red can be derived from the law!

The Immigration (European Economic Area) Regulations 2006
Regulation 15

15.—(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

The UK law on this point is in agreement with the EU directive 2004/38; the UKBA interpretation definitely is not. To me this seems a fantasy based on wishful thinking.

[86ti]

I would also think that neither the Directive nor the EEA regulations support the second text marked in red. Could the first point be geared towards permanent residents having become criminal offenders and been removed from the UK? EDIT: probably it's not judging from the wording.

[giardaella]

it's unacceptable as even the normal family members during the first 5 years' residence get 6 months per year outside uk, without breaking the residence. How can "temporary and occasional nature" be interpreted for PR and even fewere rights for them?

The Directive and the Regs are quite clear and I wonder who they are trying to scare off? Do they think a person having obtained a PR and gone through the sloppy UKBA process numerous times, would so easily give up the PR only because of the illegal guidance... it's a joke, hope to see them taken to the cleaners.

[86ti]

it's unacceptable as even the normal family members during the first 5 years' residence get 6 months per year outside uk, without breaking the residence. How can "temporary and occasional nature" be interpreted for PR and even fewere rights for them?

Why fewer rights? Some feedback from this forum suggests that the UKBA is seeing this exactly the same way.

[fysicus]

I just accidentally discovered how UKBA probably confused themselves by thinking that people holding PR under European rules can be treated as returning residents. See http://www.ukvisas.gov.uk/en/howtoapply ... gresidents in particular under How do I qualify?

[fysicus]

I had raised this issue with my MP, who questioned the immigration minister Damian Green about it.

It took a while, but now my MP received a reply from UKBA (which he forwarded to me) in which they confirm that the information in the leaflet is wrong and will be amended.

Case closed, as far as I'm concerned.

[Directive/2004/38/EC]

I had raised this issue with my MP, who questioned the immigration minister Damian Green about it.

It took a while, but now my MP received a reply from UKBA (which he forwarded to me) in which they confirm that the information in the leaflet is wrong and will be amended.

Case closed, as far as I'm concerned.

Good for you for following up with your MP?

Might you ask your MP when UKBA plans to notify all recipients of that cover letter that the information was incorrect?

[nonspecifics]

As an update on this discussion, the letter accompanying PR in January 2012 still used these phrases in it:

"In order to be considered as permanently resident here you will have to be able to show that you are habitually and normally resident in this country, and that any absences have been of a temporary or occasional nature.

You will not be re-admitted as a person with a right of permanent residence if you are resident overseas and only return here for short periods."

I thought these parts of the letter were also going to be removed from all future letters because it has no legal basis and is simply tripe?

The case is re-opened!

[Azhaar]

As an update on this discussion, the letter accompanying PR in January 2012 still used these phrases in it:

"In order to be considered as permanently resident here you will have to be able to show that you are habitually and normally resident in this country, and that any absences have been of a temporary or occasional nature.

You will not be re-admitted as a person with a right of permanent residence if you are resident overseas and only return here for short periods."

I thought these parts of the letter were also going to be removed from all future letters because it has no legal basis and is simply tripe?

The case is re-opened!

yes this letter came with my PR card as well.. kinda scary l:

[fysicus]

nonspecifics and Azhaar: I think you have to repeat what I did about a year ago - complain to your local MP. You can basically copy the text of my initial post in this thread in the body of your letter.

In itself there is nothing to worry about, the law is the law and such letters from UKBA have no legal status.

I vaguely remember that somebody on this forum reported that the accompanying letter for EEA4 applications had been amended correctly, but that the letter for EEA3 applications still had the offensive statements (as quoted by you). Do your posts refer to an EEA3 or an EEA4 application?

[nonspecifics]

I quoted from an EEA3 Permanent residence letter.

[zheni]

I think this is linked to taxation as the UK charges tax on residence but I do not see why they put it in the letter.

[EUsmileWEallsmile]

I think this is linked to taxation as the UK charges tax on residence but I do not see why they put it in the letter.

Nice theory, but somehow, I doubt it.

[zheni]

I think this is linked to taxation as the UK charges tax on residence but I do not see why they put it in the letter.

Nice theory, but somehow, I doubt it.

The way it's written it sounds like tax to me but I don't understand why did they put it in the letter.

[EUsmileWEallsmile]

I think this is linked to taxation as the UK charges tax on residence but I do not see why they put it in the letter.

Nice theory, but somehow, I doubt it.

The way it's written it sounds like tax to me but I don't understand why did they put it in the letter.

Because it sounds so much like the domestic immigration rules for certain categories.

[5yrstoday]

Hi there any recent EEA4 PR recipients,

May I ask you if your EEA4 PR accompanying letter has the following wording in terms of "habitually and normally resident in this country".?

As an update on this discussion, the letter accompanying PR in January 2012 still used these phrases in it:

"In order to be considered as permanently resident here you will have to be able to show that you are habitually and normally resident in this country, and that any absences have been of a temporary or occasional nature.

You will not be re-admitted as a person with a right of permanent residence if you are resident overseas and only return here for short periods."

I thought these parts of the letter were also going to be removed from all future letters because it has no legal basis and is simply tripe?

The case is re-opened!

As per Directive 2004/38/EC, CHAPTER IV – Right of Permanent Residence, Section I Eligibility, Article 16 – General rules for Union citizens and their family members

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

It looks like a short trip should suffice. Do you have any legal references on the concept of "absence" that may clarify this?

Thanks a lot!

[Plum70]

My accompanying PR issue letter (March 2013) read something like this, in one line - Find enclosed your residence document confirming your status.

That was it.

[5yrstoday]

Thanks a lot for sharing Plum70 - If there was a change in the wording then there may be a good reason for it.

Does anyone have any comments or references on the 2-year "absence" concept please?
Is it different in the case of ILR as opposed to PR obtained through EEA4 form through the european route?

Thanks again!

[EUsmileWEallsmile]

The immigration rules and EEA route are very different. In the case of the EEA route, absences need to be no greater that 2 years. Absence means not being present (it is self-explanatory).