Absences of six months a year. How is a year defined?

[tbm]

Directive 2004/38/EC says:

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year

Unfortunately, I cannot find a definition of what they mean by "a year". If I entered the UK on the 3rd of September, does the year run from the 3rd of September to the 2nd of September the following year, is it a calendar year, or is it any continuous period of 12 months?

[Jambo]

any continuous period of 12 months

[Directive/2004/38/EC]

any continuous period of 12 months

UKBA does not define it this way. See the UKBA response to an FOI request

They define it as the anniversaries of the start of the period of continuous lawful residence.

So if you are the EU citizen and arrived on March 6 2010. and started working 7 weeks later, it would be the periods:
Year 1: Mar 6, 2010 - March 5, 2011
Year 2: Mar 6 2011 - March 5, 2012
...

[tbm]

UKBA does not definite it this way. See the UKBA response to an FOI request

Thanks for the link!

[Jambo]

I'm aware of the FOI and actually based my response on that.

My understanding of the HO view is that it is anniversaries of the qualifying period. However, when the qualifying period starts can be selected by the EEA national.

Take for example someone with the following residence pattern:

January 2007 - arrive to the UK.
March 2008 - Moved to Germany for 5 months.
August 2008 - return to the UK for 3 months.
November 2008 - moved to Germany for 5 months.
April 2009 - Return to the UK.

Assuming this person was working during all his periods in the UK.

Using your example he will have:

2007 - OK
2008 - 7 months out of the UK
2009 - 3 months out of the UK

So his residence was broken.

I believe that he can claim:

Year 1 - September 2007 - September 2008 - 5 months absence
Year 2 - September 2008 - September 2009 - 5 months absence
Year 3 ...

so his residence was not broken and he will obtain PR in September 2012.

You just need a continuous 5 years. No where are you asked to prove 5 years from when you arrived to the UK. Although the form asks you for your first arrival to the UK, you are only required to provide treaty rights evidence / absences for the 5 years you are claiming for.

[Directive/2004/38/EC]

So, if I understand correctly, you are arguing that you can slide around the start date to a date of your choice (choosing from among the days you were resident), in order to ensure that absences do not accumulate to more than 6 months.

Since nothing is apparently in writing at UKBA about this topic, it is hard to tell if everyone working there has the same view. I would suspect not.

[Jambo]

Yes. That's what I'm saying. The same way you can slide the 5 years if you have been living in the UK for more than 5 years.

In any case, I think this is more of an academic discussion as in practice if you provide 5 years of evidence of treaty rights, the HO will not going to check what you did outside those years.