Changes to calculating “continuous residence” in the UK for Permanent Residency

[ukresidentpt]

Fellow members of this forum

As a member of the EU and a permanent resident in this country, I would like your help to elucidate potential issues with my continuous residence status.

I was granted my PR card on 23/07/2017 after presenting them with the relevant documents and travel history dated from 2008.

These were all the trips/absent days from the UK after my PR was issued in 2017.

Sao Paulo 29/06/2017 - 23/09/2017 = 86 days
Amsterdam - 27/01/2018 - 30/01/2018 = 3 days
Prague 11/07/2018 - 21/07/2018 = 10 days
Sao Paulo 18/09/2018 - 05/11/2019 = 413

In spite of my absence, especially on my last trip, it seems though that I should be able to apply without further ado according to GOV.UK

"You have ‘permanent residence’ status If you or a family member are from the EU, EEA or Switzerland, you usually get permanent residence status automatically after living in the UK for 5 years. To apply for citizenship with permanent residence status you must usually have lived in the UK for 12 months after getting permanent residence status. You also need a permanent residence document that proves you’ve lived in the UK for 5 years - this can be any 5 year period. This means that if the 5 year period was more than 12 months ago, you’ll be able to apply for citizenship as soon as you get your permanent residence document."

Still, I would like to double-check as to whether I'm already qualified to apply for British Citizenship.

Also, I would like to know in case of Brexit takes place sooner and I decide to apply for Settled Status, this could, in fact, harm my permanent residency in a way that it would prevent me from acquiring the British nationality straight away and therefore making me wait another year to apply for it.

I'm looking forward to hearing your advice on this matter.

Kind regards

[CR001]

Is your most recent absence in the last 12 months 413 days??? You would fail the no more than 90 days absence in the final 12 months requirement.

Citizenship is based on the last recent 5 years immediately preceding date of application, not only from when you got PR.

Absence is more than 450 days in the 5 years and no more than 90 days in the final 12 months immediately preceding date of application.

[secret.simon]

You retain PR because you have not be absent from the UK for any period of two continuous years.

However, the absence requirements for British citizenship are different. They are
a) an absence of less than 450 days in the five years immediately preceding the date of application.
b) an absence of less than 90 days in the year immediately preceding the date of application.
c) physical presence in the UK at the start of the five year period immediately preceding the date of application.

Note that for British citizenship applications, the periods all count backwards from the date that you submit the application. It is not a case of being able to choose a period of time in the past.

You have only listed the periods of absence after acquiring PR and even just that already exceeds point (a) above. As mentioned by CR001 above, you also exceed (b) above.

So you would have to drastically curtail your absences from the UK if you plan to apply for British citizenship.

EDIT: Overtaken by CR001's much more succinct response.

[ukresidentpt]

So what are the avenues left for me to take?

[CR001]

Wait till you meet the requirements before you apply.

[ukresidentpt]

I see. But when you say wait until I meet the requirements you mean waiting another 5 years? Or would I be able to apply, say after November 2020?

[CR001]

You will have to work out how long you need to wait until you meet the 3 mandatory requirements, namely :

1. Note more 450 days absence in the qualifying 5 years.

2. No more than 90 days absence in the final 12 months before applying.

3. That you were physically present in the UK at the start of the 5 year qualifying period, which will correspond to the date you apply.

[ukresidentpt]

I understand. What puzzles me is this line in which it says:"You also need a permanent residence document that proves you’ve lived in the UK for 5 years - this can be ANY 5 year period".

I exceeded the 450 days on my last 5 years so this means I will have to go through the process of waiting for 5 again? This way I might be better of applying for BC based on the long residence rule of 10 continuous years.

The reason for this long absence was because I had to help my wife looking after her mother who was ill. I actually have the means to prove it.

Also, would you advise me to apply for a Settled Status in case Brexit kicks in sooner? How would it change my case then?

Thanks for your responses.

[CR001]

What puzzles me is this line in which it says:"You also need a permanent residence document that proves you’ve lived in the UK for 5 years - this can be ANY 5 year period".

Don't confuse the requirements for PR under EU rules with the UK nationality laws for citizenship. While PR can be attained based on any qualifying 5 year period in the past, citizenship cannot and is only based on the most recent 5 years immediately preceding the date of application, which must include at least 1 year on PR.

I exceeded the 450 days on my last 5 years so this means I will have to go through the process of waiting for 5 again? This way I might be better of applying for BC based on the long residence rule of 10 continuous years.

You need the 5 year period prior to date of application to meet the requirements I stated. It does not necessarily mean you have to wait another 5 years. You will need to do the calculation based on the 3 requirements I stated above.

The reason for this long absence was because I had to help my wife looking after her mother who was ill. I actually have the means to prove it.

Irrelevant. Thee is no distinction of difference types of absence or reasons for absence. All absences are treated the same.

Also, would you advise me to apply for a Settled Status in case Brexit kicks in sooner? How would it change my case then?

Your choice if you choose to.

[ukresidentpt]

Once again your reply is much appreciated.

I calculated the days I've been absent for the last 5 years, 23/07/12 to 23/07/17 (PR issue date) and it came down to 180 days.

Then after it was pretty much the following:

Sao Paulo 29/06/2017 - 23/09/2017 = 86 days
Amsterdam - 27/01/2018 - 30/01/2018 = 3 days
Prague 11/07/2018 - 21/07/2018 = 10 days

99 days in the following year.

And then finally...

Sao Paulo 18/09/2018 - 05/11/2019 = 413

I sincerely do not know how to calculate this.

I would appreciate it if you could shed a light on this.

[CR001]

Ignore the 5 years for PR.

For exame, Work back from 5 November 2020, to get the 90 days in the preceding 12 months. Then work back to 5 November 2015 to see if you are on 450 up to a max of 480 days absence. You will also need to make sure that you were physically present on 5 November 2015.

If you find it is still over, then play around with various day/month/year to work out the best option.

[ukresidentpt]

I seem to be getting it now.

I read that exceeding 180 days where the residence requirements over the full qualifying
period are met I should consider exercising discretion if the applicant has
demonstrated that they have made the UK their home.

I have been residing in the property we bought for the last 10 years. Would this be a good indicator?

Thank you.

[ukresidentpt]

That would be around 525 days I guess.

That exceeds the 480 days by 47 days.

Would it be 47 days the time that should be allowed extra? I mean on top of the year without 90 days' absence?

In other words: 365 days + 47 days?

[CR001]

I read that exceeding 180 days where the residence requirements over the full qualifying period are met I should consider exercising discretion if the applicant has demonstrated that they have made the UK their home.

Where exactly did you read about 180 days?? There is no such requirement or limitation for citizenship.

I have been residing in the property we bought for the last 10 years. Would this be a good indicator?

Irrelevant really. Many people own property in the UK but don't live here and are not British citizens and owning a property doesn't give them a right to live in the UK, as an example. You simply need to meet the standard requirements for citizenship to be successful.

[CR001]

That would be around 525 days I guess.

That exceeds the 480 days by 47 days.

Would it be 47 days the time that should be allowed extra? I mean on top of the year without 90 days' absence?

In other words: 365 days + 47 days?

Not sure what you mean.

It is 450 days in the whole 5 years. HO can, at their discretion, ignore absence of up to 480,note they do not have to.

The 90 days max, up to 110 at HO discretion, in the final year.

[ukresidentpt]

You can read that on page 17

'exceeding 180 days where the residence requirements over the full qualifying
period are met - consider exercising discretion if the applicant has
demonstrated that they have made the UK their home'

https://assets.publishing.service.gov.u ... .0-ext.pdf

I would be absent 525 days over the 5 year period between 2015 and 2020. What should I do then? How much time should I allow to apply?

[ukresidentpt]

I meant to wait 47 days plus based on what it says on freemovement.org

If absences are over 540 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.

My case seems to fit into the discretion criteria for absence bellow 540 days in which "Discretion may be exercised where the applicant has been resident in the UK for the previous five years, without substantial absences within the first two of those years (the two years outside the normal qualifying period)".

https://www.freemovement.org.uk/british ... in-the-uk/

Does that make sense?

[ukresidentpt]

That would actually be 525 - 450 = 75 days to fall into that threshold.

If it's not the way to go on about this, please tell me what I can do to fix this.

Thank you!

[vaza]

CR001 said exactly how to go about it - reread please. Then some other minor points to consider here:

Yes, ideally you would wait enough time to remove the 75 days away, which can be 75 days or more likely 2 years looking at your earlier post. If you apply in Jun 2022 you still have 512 days being away in the 5 years before. On a positive note, the days travelling don't count, so you get 4-5days back.

If you look only at the past year you should be able to apply in August 2020 as this when your absences drop under 90 days, assuming no further travel. Then look back at the 5 year absences and judge by yourself. There are very detailed instructions in the case officer's instructions for exercising discretion. But as CR001 pointed out case officer don't have to exercise this discretion - the onus is on you. If there is the least bit of problem in the docs or some doubt, they will likely refuse. Nobody can tell you for sure and as everyone here is saying it is very risky - mind you you only loose the money, still can apply 2 years later. Finally the notes say if there is discretion on the 5 years, there cannot be any on the 1 year - 90 days at most, that is August 2020 is the absolute earliest, probably later.

Please let us know how it turns out.