Gaps in Treaty Rights

[Nyamebeye]

Hi everyone,

I will appreciate any advice pls.

My ex has been in the UK since 2001 exercising treaty rights as a worker throughout. He applied for EEA registration certificate in 2006 valud till 2011 but did not apply for PR in 2011. I have no proof of treaty rights before 2007. I have ini my possession his P60 from 2008-2015 which makes 7 years. However he worked until end of June 2011 and travelled. He returned in May 2012 giving a total gap of 11 months; 6 moths in 2011 and 5 months in 2012 but he has been working since returning in 2012 till date (2015) . My question is

a) considering EEA national can be away for not more than 6 months per year, will his absence in 2011 for 6 months in addition to working from Jan 2011 to June 2011 be accepted as him exercising treaty rights for that year?

b) since his absence entered the new year 2012, will it be acceptable to count Jan 2012 to May 2012 also as travel period less that 6 months for year 2012?

I serached on this forum and also FOI request and found this question someone asked:

"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.

Answer

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.

Any 5 year period I choose for him will include the gap I am talking about. I intend to use Jan 2010- Jan 2015 as his qualifying period and same as my qualifying period.
Any ideas if I will be ok to proceed with my PR based on this information?

Many thanks.

[Nyamebeye]

Please can anyone help? I am desperate.

[Nyamebeye]

I need advice/ suggestions pls.

[Nyamebeye]

Ei, help ooo. Pls help. I am desperate.

[sagareva]

you are looking at it the wrong way

you need to select ANY 5 YEARS for which you have confirmation of treaty rights continuously with no more than 6 months absences, and apply on the basis of them

this can be 2006-2001
2001-2006 or whatever

but you will not be able to apply on the basis of a period that includes the 11-month absence

however right to PR acquired say at one point BEFORE that will not be lost if the longest your ex had ever left the UK for was 11 months (so long as was not longer than 2 years)

you will have difficulty explaining this to the HO but it is what is it under the EU law, so it may be worth going into that difficulty

[Nyamebeye]

Thank you sagareva. I will have a look at the whole thing again and see how best I can get evidence of any five continous years. Please may I ask say I have all my ex's employment history from 2006 to 2011 together on one/two sheets of paper from the HMRC (upon request from them) and one piece of evidence of living in the UK for each year of the 5 years, will that be enough?

Thanks for responding. I was beginning to feel left out.