HOW DO UKBA COUNT CONTINUITY OF RESIDENCE?

[nonspecifics]

I read this from an EU law training brochure:

"When calculating....5 year period for permanent residence ...3 month absence wouldn't break continuity; you would not have to start counting afresh, but you could not count the 3 months towards the 5 years required."

Does UKBA practise this when the absences are less than 6 months each time?

For example, are they going to delete every time you were on holiday from the 5 years of residency, so if you had a two week holiday abroad in year 1, you won't qualify for PR till you have resided for 5 years AND two weeks ( to make up for the two week holiday in year 1)?

If you had a 2-day trip to Paris in year 2, then you need to reside 5 years, two weeks and 2 days etc?

[Lucapooka]

If you are referring to ILR based on the work-related categories, the residence period is a fixed five year term counted from the date you enter the UK or switch into leave to remain in a qualifying category. You can be absent from the UK for trips and vacations and the time out does not have to added on to the end of the residence period. So, for example, if you are absent for a total of 100 days during the five years you don't have to add those 100 days onto the end of five years.

However, residence must be unbroken and certain absences of more 3 months in one single stretch, or 6 months in total (when aggregated), may break residence. However, this depends on the nature of the absence.

[nonspecifics]

Thanks for the answer Lucapooka.

I am specifically talking about the EU Directive; but what you describe is mostly the same way I thought they counted the residency for EU applications too ( the exception being EU applicants can pick and choose which 5 years of exercising Treaty Rights).

On the UKBA Chapter 6 PR pdf, for Eu it basically says the same thing as you said: "Continuity of residence is not affected by temporary absences (generally not exceeding 6 months per year)."

However, the teaching brochure goes further by saying you cannot count the time when absent towards the 5 years total , even if you have not broken the continuity of residence.

[86ti]

No, see http://www.legislation.gov.uk/uksi/2006 ... ion/3/made

[nonspecifics]

Ta 86ti.

So, basically the writer of the information brochure regarding EU law has got it wrong.

As long as the EU applicant has 6 months residency( and exercising Treaty Rights) in the UK for each year, then they can count the whole year towards the 5 years total.

Following on from that, say an applicant first entered the UK on Jan 1 of 2006. If he counted 5 years from that day, in one year he would have broken the continuity of residence by a few days over 6 months.

So he decides to count from say 10 January to 10 January for each of the 5 years. By doing this he splits the one long trip between qualifying years, so one year is five months 26 days and the following year is 6 days absent. That way each year's absence is less than 6 months.

Is this acceptable to UKBA under the EU Directive,?

I believe EU applicants only have to exercise Treaty Rights for any consecutive 5 year period, so they can pick and choose those 5 years including the start date and finish date.

[86ti]

I am afraid I cannot follow your calculation but it seems that you are using the calendar year for reference. I would think, however, you can use any day as your first day and thus a sliding window approach should be fine.

I do not know how the UKBA sees that currently but unless you have been the infamous unreasonable burden to the state in some period you should be fine I guess.

the exception being EU applicants can pick and choose which 5 years of exercising Treaty Rights

Of course because PR is acquired automatically and there is no requirement to have it confirmed.

[cutepearl]

Just a quick question.. How can one ask from the homeoffice the record of absence from the Uk.. I would like to know how long have I been absent and my spouse being absent from the UK... Or they don't have that information on their records ? Thanks

[Jambo]

You can make a SAR request to the HO but my experience it will not contain your absences. I'm not sure this is something so easily accessible by the HO. Try to list your absence to the best of your knowledge based on memory, flight tickets, emails etc.

[86ti]

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.

[fysicus]

Wasn't there an e-borders project to register every border crossing (in or out of the UK) for everyone, including British Citizens? Having said that, until now my passport has never been checked (i.e. by government officials) when leaving the UK, although of course I had to show it when checking-in and boarding a plane.

On the original subject of this thread, I agree that as an applicant for PR you can choose the start date of the five-year consecutive period to be whatever suits you best, but it strikes me as odd that a single absence of more than six months could technically be swept under the carpet because it crosses a year-boundary. I would think an absence of more than six months consecutively breaks the continuity of residence, regardless of its position within the five-year period.

However, a single absence of up to twelve months is allowed in some cases, but that's a different subject.

[nonspecifics]

That's a good point you raised, so here is another question.

( PLEASE NOTE: The post was later edited to correct a mistake in the arithmetic, helpfully pointed out by fysicus in the following post.)

fysicus said:

it strikes me as odd that a single absence of more than six months could technically be swept under the carpet because it crosses a year-boundary. I would think an absence of more than six months consecutively breaks the continuity of residence, regardless of its position within the five-year period.

So, here is a scenario, say for example:

PR applicant is resident in a host nation from Jan 1 2005

Then

out of the country , 14 Jan to 30 April 2008

in the country 1 June to 30 June 2008

Then out of the country again 1 July to 1 Oct 2008.

Then in the country again 2 Oct onwards to 31 December 2008


If the PR applicant counted the years from date of entry

year 3

1 Jan 2008 - 31 Dec 2008 absence = 6 and a 1/2 months

breaks the continuity of residence for that year.

Ok, he could discount one trip from the 5 years , but if he repeated the pattern, he can't omit another trip again, so one year would break the continuity.



However, by counting each year 1 June to to 31 May it works out like this:


Ignore 1 Jan 2005 to May 2005 even though resident and exercising Treaty Rights.

Pr, 5 years start date :

1 June 2005 to 31 May 2006 absence = 0 months

1 June 2006 to 31 May 2007 - total absence = 3 months

1 June 2007 to 31 May 2008 - total absence = 3 and a 1/2 months

1 June 2008 to 31 May 2009 - total absence = 3 months

By careful choice of start dates the maximum absence in those years listed is 3 and a 1/2 months in a year and so he avoids a possible break in continuity.


Is the example shown above an acceptable way to count your continuity of residence?

[fysicus]

Well, you made a mistake in the arithmetic indeed: the total absence in 2008 would be 5.5 months, not 6.5 months, so make the second break from 1 July to 1 October to correct for that.

In this case there are no absences longer than six months, so that's fine, and in my opinion it would be perfectly acceptable to choose a later start of the five year period to avoid having two absences together exceeding six months within one of the five years.
Of course, you then also have to postpone the date from which you can claim to have acquired PR (to 1 June 2010 in your example).

Whether UKBA agrees with all this, is of course again another question, but I have no objections.

[nonspecifics]

fysicus, well spotted. Top marks for arithmetic and attention to detail. ( I have corrected the post).

Yes, that's right, delaying the start date of the 5 years, to split the long trips into separate years would mean having to delay when they could apply for confirmation of Pr.

I've only ever seen 5 continuous years exercising Treaty Rights as the conditions for the dates, so presumably there are no other restrictions laid down on how to count the years. ( Unless someone else knows some others restrictions? )

As one year = any 12 month period, then there should be no restrictions on an applicant counting it the way I did; but unlike me, hopefully they can count it better hahaha.

[Directive/2004/38/EC]

I read this from an EU law training brochure:

"When calculating....5 year period for permanent residence ...3 month absence wouldn't break continuity; you would not have to start counting afresh, but you could not count the 3 months towards the 5 years required."

Do you have a link to this brochure? Or can you post it here?

[Directive/2004/38/EC]

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 12 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.

It is unclear whether "six months a year" means "six months in any calendar year" or "six months in any rolling one year window".

I would tend to think it means the "six months in any calendar year" since that is far simpler to calculate.

By comparison "12 consecutive months" is clearer.

[nonspecifics]

Directive, I used to think that too, that it meant calendar year, but I've not found anywhere that says calendar year viz. Jan to Dec.

There is also tax year which is different again in the UK: Apr to Apr.

But nowhere have I seen the words calendar or tax mentioned.

What they have in common is a period of time lasting 365 days, which is based on the time the Earth takes to make a complete circle around the Sun. Are you allowed to call an astronomer as a witness to a tribunal to confirm the definition of a year? haha

Then I thought, if someone is sentenced to 5 years in jail in December, they are not going to count December to Jan as one year of the sentence completed; they will count the years from the date of the sentence being issued.

Not that I am trying to suggest that living in the UK is like serving a prison sentence haha.

As you demonstrated they are more specific about things like consecutive 12 months or 5 years continuous.

But even with months, it does not say which months, just consecutive, so no start or finish date is stipulated.

I agree with you, it is unclear; so that's why I thought it is open to personal interpretation.

[Directive/2004/38/EC]

If in doubt, look it up: http://www.legislation.gov.uk/uksi/2006 ... e/data.pdf

Continuity of residence
3.—(1) [...]
(2) Continuity of residence is not affected by —
(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;

To me this is pretty clearly a calendar year. If it was a rolling window (or something complicated) they would have to explicitly specify that.

And the UK tax year is another matter altogether and no something that will apply across the EU for free movement purposes.

[nonspecifics]

I understand and can see your reasoning for saying calendar year.

Maybe that's what they do mean and I wouldn't be surprised if you are right.

However, I would still try to argue that unless explicitly defined as calendar year, or any clearly specified dates, then it can be any 365 day period.

For example if it's calendar years and someone arrives in the UK on 2 July 2005. Does that mean they can only count from 1 January 2006 as the start of their first whole year - cos they can't count any of 2005, cos they were absent for more than the first 6 months of the year, so did not complete a whole calendar year in the UK in 2005. That would be very unfair if it is correct.

[Directive/2004/38/EC]

If it is not explicitly specified in the Directive, then I think there is definitely wiggle room to argue for what you want. That is the base of most fun case law.

[nonspecifics]

Yes, that's right Directive. It makes you think.

I think this court case seems to support my reasoning:

Here is a lawyers' argument from Scots Law, the Court of Session about what is a year ( in an employment law case):

http://www.scotcourts.gov.uk/opinions/2005csih56.html

Conclusion

[16] For the foregoing reasons, we consider that the period of twelve calendar months, which began with 8 April 2002, ended with 7 April 2003. When the appellant's employment was effectively terminated on that date, she had therefore been continuously employed for a period of not less than one year.

I believe the Court of Session is also the next step on from the Asylum and Immigration Tribunals in the appeals process in Scotland.

[86ti]

If it really was a calendar year than any continuous residence shorter than six months in the first calendar year would be lost obviously. Whether the Directive or the UK EEA regulations really mean calendar year is a matter of interpretation. Schengen rules BTW also use a sliding reference frame. Also, so far we had no complaints here regarding this issue.

The cited case above is probably not relevant as it is not in relation to EEA regulations and it is obviously one from Scotland (different jurisdiction). It also sets the calendar year arbitrarily to the British business year.

[fysicus]

If in doubt, look it up: http://www.legislation.gov.uk/uksi/2006 ... e/data.pdf

Continuity of residence
3.—(1) [...]
(2) Continuity of residence is not affected by —
(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;

To me this is pretty clearly a calendar year. If it was a rolling window (or something complicated) they would have to explicitly specify that.

I'm sorry but I find the conclusion that it should be a calendar year extremely unlogical. As the five year period is allowed to start on any date, not necessarily 1 January, each of the five constituent years in this period should also start on the same arbitrary date.

An extreme example usually helps to see more clearly:
Applicant X becomes resident on 1 July, then leaves UK on 2 July and comes back for Christmas. Then in each of the next four calendar years he is away for just under six months, and in the last year he is away from 2nd January until 29 June, just in time to send in his EEA4 form on 1 July (five years after becoming resident).
During this period of five years he was then actually in the UK not more than two years and a few days, but in Directive's interpretation his continuity of residence is unbroken??

[86ti]

Right. So, using a calendar year and assuming that is how it is meant to be, an EEA national could both profit form such a regulation or be put to a disadvantage.

[nonspecifics]

86ti, That is Interesting and encouraging information. Also, I didn't know the Schengen rules use a sliding reference frame.

The main focus of the court case was clarifying the legal definition of a year as a length of time and how a year can be counted.

The only point I would attempt to qualify, is this:

it is obviously one from Scotland (different jurisdiction).

The case was about employment law, which I think is UK law. They referred to the House of Lords ( UK / english law) for case law.

If the case had been about the EU Directive, then maybe a ruling in Scots Law could eventually matter; just as court rulings in France, Belgium, Netherlands, Germany etc have affected the UK's law.

If the decision in a national court has then been backed by the EU judges - because it is EU law that is being examined - a new legal precedent at EU level could overrule EEA countries' national law.

[86ti]

I think you are worrying too much. The calendar year approach cannot work and there is nothing in the ECIs suggesting that it would be used.