Permanent residence rejected due to military service absence

[tesb]

I have just had a phone call from the officer dealing with my Permanent Residence application, it will be rejected due to a 9 month absence in 2012. I am an EEA national (Greek) and the absence was necessary to fulfil my compulsory military service.

My understanding was that military service is an acceptable exemption for the continuous residence requirement. The Permanent Residence application form states the following:

If you were or your sponsor was absent from the UK for more than six months in any
12-month period, please indicate the reason for the absence by ticking the relevant box below:
-Military service
-Other important reasons, such as pregnancy and childbirth, serious illness, study or
vocational training, or an overseas employment posting

The officer dealing with my case at the Home Office claimed that the military service exemption applies only to UK Forces military service. Can anyone clarify this point?

I was also advised to retract my application so that i dont have a refusal on record. Of course this would mean that i could not appeal the decision which i plan to.

The UK Naturalization guide from the Home Office has a similar provision regarding military service in the EEA section which makes me conclude that is should apply to me? In other parts of the guide the UK forces as referred to specifically as 'HM Forces'.

https://www.gov.uk/government/uploads/s ... r_2015.pdf

6. EUROPEAN ECONOMIC AREA NATIONALS AND SWISS NATIONALS

...
Applicants who have been outside the UK for 6 months or more in any one of the 5 years
residence period will be seen to have ‘broken’ their residence. However, this does not
apply in the following circumstances:
1. Period of absence from the UK due to military service
2. Any one absence from the UK not exceeding 12 months for an important
reason such as pregnancy and childbirth, serious illness, study or vocational
training or an overseas posting.
...

Any help or advice will be greatly appreciated.

[chaoclive]

Wouldn't expect that the UK forces would be referred to in EEA rules as:

"Soldiers from across the Commonwealth and other countries have a long and proud tradition of service in the British Army. The Army welcomes applicants from certain countries and overseas territories, but you may need to have lived in the UK for a set period of time to be eligible for certain roles.

Commonwealth countries
Regular Army:
British citizens, British subjects under the Nationality Act, 1981, British Protected Persons or Commonwealth Citizens.
If you are a citizen of a Commonwealth country, you'll need to have lived in the UK for at least 5 years before you start an application to join the Army. You must not have been out of the UK for a continuous period of more than 180 days (6 months) during this 5 year period. A passport is required with validity for 4 years from the date of entering Army service. Your UK Residency status and Passport will be checked at application.

To join the Army Reserve, you need to:
Prove that you either have British citizenship, or if you are a Commonwealth Citizen, Indefinite Leave to Remain or Indefinite leave to Enter must be stamped on your passport (Settlement) in the UK.
Citizens of the Irish Republic joining the Army Reserve must be living in the UK to be eligible to join
Refugees and Asylum Seekers are not eligible to apply to join the British Army. All candidates who have a Visa must provide proof of this throughout the recruiting process."

http://england.shelter.org.uk/get_advic ... eu_and_eea

The above only refers to commonwealth citizens, British citizens & Irish citizens NOT other EEA citizens. I doubt very much that they would be able to say that this is just re: UK Forces, because British and Irish people (generally) don't apply for PR as both are 'settled' in the UK when they arrive.

[Obie]

The Regulation does not Say it has to be Host Memberstate military, and i don't believe the draft man of the Directive , could have envisaged that, as Most EU national will not be even eligible to join the British Army.

[Obie]

The Regulation does not Say it has to be Host Memberstate military, and i don't believe the draft man of the Directive , could have envisaged that, as Most EU national will not be even eligible to join the British Army.

It is outrageous, you must appeal, as it is just rubbish.

[vinny]

Continuity of residence

3. (1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under regulation 5(1) and regulation 15.

(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;

(b)periods of absence from the United Kingdom on military service; or

(c)any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

(3) But continuity of residence is broken if a person is removed from the United Kingdom under these Regulations.

Where

“military service” means service in the armed forces of an EEA State;
...
“EEA State” means—
(a) a member State, other than the United Kingdom;
(b) Norway, Iceland or Liechtenstein; or
(c) Switzerland;

[Obie]

Precisely Vinny.

I knew it was wrong.

My gut feeling told me so. I was going to find the smoking gun, that it was wrong , but you have saved me the hassle.

[Directive/2004/38/EC]

Have they given you anything in writing? Please document on paper exactly when you received any call, who it was from, and what exactly what they said.

I must congratulate you though. This is the funniest (almost) rejection I have heard of in a while!

Did they actually threaten you with a "rejection on your record"? So they are suggesting that their misunderstanding of the law would show up on your record? AMAZING!

[tesb]

Thanks a lot for the replies.

They asked me to retract my application on the spot to avoid getting a refusal on record, they didn’t say it directly but I felt it was implied that having a rejection has a negative bearing for future applications. I asked them to call me again this afternoon as I needed to research the regulation around military service.

I will take a note of the officers name and point to the interpretation document of the directive, I will keep you posted.

[Directive/2004/38/EC]

Be sure to ask for the case or file number.

You may also write to the European Operational Policy Team. They have in the past gently contacted colleagues who do not fully understand the European law issues. Do not ask them to "intervene". Just point out that Directive 2004/38/EC is explicit that periods of absence for "compulsory military service" do not interrupt the period of residence. You can suggest that it might be helpful if they contacted the person handling your application to discuss continuity of residence.

The email the European Operational Policy team is EuropeanOperational@UKBA.gsi.gov.uk

Directive 2004/38/EC
Article 16
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.

[tesb]

Just heard back from the Home Office. I pointed to the EEA Regulations interpretation document (which the HO agent confirmed to have in front of him) and the interpretation of military service as ' service in the armed forces of an EEA State'. All he had to say was that it wasn't his call and took the case to his manager, who apparently referred it a further level up the chain.

I was advised that i am still looking at a refusal as I politely refused to withdraw the application, so unless something changes I am waiting for the refusal letter to launch an appeal.

[Obie]

Well you have the option of appealing if they refuse, and claim all your expenses under PAragraph 9(2) of the First Tier Tribunal (IAC) rule 2014.

[Directive/2004/38/EC]

Just heard back from the Home Office. I pointed to the EEA Regulations interpretation document (which the HO agent confirmed to have in front of him) and the interpretation of military service as ' service in the armed forces of an EEA State'. All he had to say was that it wasn't his call and took the case to his manager, who apparently referred it a further level up the chain.

I was advised that i am still looking at a refusal as I politely refused to withdraw the application, so unless something changes I am waiting for the refusal letter to launch an appeal.

I would still suggest you contact the European Operational Policy team

[Directive/2004/38/EC]

I pointed to the EEA Regulations interpretation document (which the HO agent confirmed to have in front of him) and the interpretation of military service as ' service in the armed forces of an EEA State'.

Exactly which interpretation document has this definition?

[vinny]

It's defined in the EEA Regulations.

[tesb]

I pointed to the EEA Regulations interpretation document (which the HO agent confirmed to have in front of him) and the interpretation of military service as ' service in the armed forces of an EEA State'.

Exactly which interpretation document has this definition?

Directive/2004, it's the document contained in the link Vinny posted above:

http://www.eearegulations.co.uk/Latest/ByPage/part1_2 (paragraph 2 about mid page)

And yes i will be writing to the European Operational Policy team, i am just waiting for the refusal letter first, although they tries to shoot me down pointing to the interpretation of the directive made them decide to push my dossier a bit further up the chain, so maybe they will reconsider the rejection. Maybe.

[Directive/2004/38/EC]

You do not need to wait for a refusal to write to that team.

[Obie]

I am of the view that there is no ambiguity in the interpretation in the Regulation. On the basis of the regulations alone, OP must succeed.

The law is clear, just a rogue civil servant refusing to comply with it

[Directive/2004/38/EC]

I agree

[tesb]

Got my application documents back this morning, along with my Residence card

Along with my original documents there is a printout of the 'How to join' section of the British Army Website (?!), i think this is where the HO guys were looking for guidance on my case and the printout was accidentally returned to me along with my documents.

Hats off and many thanks to the members of the forum, your help turned a pre-announced rejection letter into a shiny new registration card.

[asian_atheart]

Hi tesb,

Well done and congratulations on your PR card!! I'm glad you took the advice and stood your ground about the military service issue. Can you share you timeline for the PR application? My partner is also Greek and we sent his application for PR on 4th April and are as yet to receive the card. He didn't have the Greek military service issue (he has not completed it yet-receiving extensions). But would be good to know how long HO are taking for EEA PR applications!!

Congrats again.

Best,
asian_atheart

[Andrewbird35]

Yes please share your time line
And Congrats a lot
Furthermore,could you tell please from which no you received call?i mean Liverpool land line.0800 or withheld no.?
Because I do not attend calls from any unknown nos including withheld no.due to fed up marketing calls.

[Universal soldier]

What exact benefits are you looking for after achieving UK PR despite as being EU national.

[asian_atheart]

What exact benefits are you looking for after achieving UK PR despite as being EU national.

I'm not sure about the author of this thread. In our case, my partner (EEA national) applied to support a future EEA 2 application for me either as married or unmarried partner (I am non EEA). In addition he also wanted to do this instead of directly applying for BC as its quite expensive and to avoid any mistakes caused by paperwork. Once you have the PR card you can supply this in lieu of the additional paperwork at the time of citizenship application.

[tesb]

Universal Soldier- A UK PR card was requested by the Home Office for my UK Naturalization application. Because of my 9 month military absence I was urged to get the PR card first so i ensure i meet the residence criteria before i apply for naturalization.

AndrewBird35- It was a withheld number, i was told they are calling from Manchester but the letter i received is letter headed Liverpool.

asian_atheart - I sent the application on the 30th of March and as you as can read in the thread the process was held up for about 10 days at least with the military service confusion. So 45 days between applying and getting the card which could been a bit shorter in theory.

[asian_atheart]

Hi tesb,

Thanks for the update-thats a good timeline, despite the delay with the decision. And just out of curiosity was your period of treaty rights only work/ study or a combination of both?

Thanks!