Permanent Residence 180 days of absence question

[elenailr]

Would a period longer than 180 days at one go outside the UK break continous residence
for someone that comes from an EU country even if that period is broken in two when counting the 12 months consecutive periods from the permanent residence (ILR) application backwards?

A friend of mine who comes from an EU member country has been living in the UK for almost 5 years now however in 2013 she was outside the UK around 240 days from February to September.
Let's suppose she makes her application for permanent residence (ILR) in the month of June next year.
That way counting backwards the 12 months periods would roughly cut her absence in half and would make the absence less than 180 days in each consecutive year so she would get her permanent residence card (ILR) despite the fact that she was outside the UK for 240 at one time in one go. Is that correct or am I unaware of something that would stop her still from getting her permanent residence card?

Year one: 2017 June - 2016 June
Year two: 2016 June - 2015 June
Year three: 2015 June - 2014 June
Year four: 2014 June - 2013 June -> 4 months of absence
Year five: 2013 June - 2012 June -> 4 months of absence


Sources:
https://www.gov.uk/government/uploads/s ... ds-v13.pdf

'No more than 180 days absence are allowed in any of the 5, 4, 3 or 2 consecutive 12 month
periods, depending on the category, preceding the date of the application for indefinite leave
to remain (ILR).'


https://www.whatdotheyknow.com/request/ ... ent_evalua

'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.'

[noajthan]

You have got yourself in a bit of a pickle.

PR is not ILR.
You are referring to ILR guidance.
ILR absence rules do not apply.

EEA Regulation 3 applies to those on an EU migration trajectory..
http://www.eearegulations.co.uk/Latest/ByPage/part1_3

What is the reason for such a prolonged absence?

A one-off absence for an exceptional reason is permissible.
For example military service is a special case; also pregnancy, study leave, work placement or similar (or possibly a combination of these).
However mere family visits, travelling, holiday/s etc would not be deemed so exceptional.

[elenailr]

Thank you for your reply.

The reason was a medical condition but I'm not sure that it is a condition that one can call 'serious medical condition'.

Based on the website you provided I have another question. What does 'do not exceed six months in total in any year' mean in that regulation. Is that the 12 months consecutive periods like I wrote in my first post?

Hypothetically what if she were absent for 170 days let's say in one go then she went back to the UK for a few days then left again for the remaining 70 days. Would that be a better situation than not having done that and just spending the 240 days outside the UK?

How could I send you a pm (for more details)? If you don't mind. I'm new here.

[noajthan]

Thank you for your reply.

The reason was a medical condition but I'm not sure that it is a condition that one can call 'serious medical condition'.

Based on the website you provided I have another question. What does 'do not exceed six months in total in any year' mean in that regulation. Is that the 12 months consecutive periods like I wrote in my first post?

Hypothetically what if she were absent for 170 days let's say in one go then she went back to the UK for a few days then left again for the remaining 70 days. Would that be a better situation than not having done that and just spending the 240 days outside the UK?

Rock-solid evidence of a medical reason would be required, eg family doctor plus medical specialists' reports & etc.

The rules for EU absences apply to cumulative time absent from UK in a 12 month period. Not single trips.

So 170 + 70 inside 12 months would exceed 180 days.
170 + 70 split by the appropriate date would not (/might not) exceed 180 days.

It is unclear if HO assesses such absences by working back from date of application or whether it is from based around the anniversary of the applicant's entry into UK.
My understanding is its the latter but I'm aware of discussion based on the former.

[elenailr]

It's all a bit confusing, unclear.
Is the UKBA in general more likely to give somene a pr in an unclear case like this or not give it?

'So 170 + 70 inside 12 months would exceed 180 days.
170 + 70 split by the appropriate date would not (/might not) exceed 180 days.'

How about this scenario

240 split by the appropriate date? Would that exceed 180 days?

Maybe if the medical records are provided then that would tip the scale in favour of granting pr in a case like this.

[noajthan]

It's all a bit confusing, unclear.
Is the UKBA in general more likely to give somene a pr in an unclear case like this or not give it?

'So 170 + 70 inside 12 months would exceed 180 days.
170 + 70 split by the appropriate date would not (/might not) exceed 180 days.'

How about this scenario

240 split by the appropriate date? Would that exceed 180 days?

Maybe if the medical records are provided then that would tip the scale in favour of granting pr in a case like this.

You are not dealing with UKBA they were done away with years ago as not fit for purpose..

It is very clear actually. Meet the requirements and submit rock-solid evidence for the whole case or face refusal of confirmation of PR.

If there was a genuine medical reason then a one-off exceptional absence (up to 1 year) will be accepted.
That is if there is rock-solid evidence.
If the condition was so serious how could you/friend keep travelling?

HO plays hard ball and doesn't give benefit of doubt in granting confirmation PR.
You can't negotiate with them; you either qualify - and prove it with supporting evidence for the whole 5 year qualifying period - or you don't.

[elenailr]

A friend of mine (EU country member) would like to apply for PR card soon.
She has had periods of self employment and also periods of employment and self sufficient non-working periods.
When she was self sufficient, between jobs basically, she didn't pay CSI however during all her years in the UK she was paying national health insurance in her home country but did not have EHIC card.
What would happen to those self sufficient times. Do they count as absences from the UK or somethin else?
Is it possible to retroactively use her payments of national health insurance in her home country as proof of health insurance as a substitute to CSI?

[elenailr]

She did not keep travelling, she was in her home country for 240 days. The 170+70 split was a hypothetical question.

It's good to know that HO plays hard ball, once again thank you for taking the time to answer my questions.

[noajthan]

She did not keep travelling, she was in her home country for 240 days. The 170+70 split was a hypothetical question.

It's good to know that HO plays hard ball, once again thank you for taking the time to answer my questions.

No point posting hypotheticals, post it as it is or ask friend to register and ask.

[noajthan]

A friend of mine (EU country member) would like to apply for PR card soon.
She has had periods of self employment and also periods of employment and self sufficient non-working periods.
When she was self sufficient, between jobs basically, she didn't pay CSI however during all her years in the UK she was paying national health insurance in her home country but did not have EHIC card.
What would happen to those self sufficient times. Do they count as absences from the UK or somethin else?
Is it possible to retroactively use her payments of national health insurance in her home country as proof of health insurance as a substitute to CSI?

Periods of no economic activity are not absences from UK.

Home country NI cannot be used as an alternative to CSI unless there is an agreement between UK and that country to do so. Is there?

Non-working between jobs may be jobseeking. (With hard evidence of jobseeking).
Otherwise, no CSI when 'self-sufficient' will stop the PR clock and reset it to zero.

[elenailr]

Is there a website that lists the EU member countries that have the sort of agreement you mentioned?

Does the PR clock start ticking again from zero if a person did not pay CSI even if the gap between self employment and employment or vice versa was only one or two months? How liberal is this regulation?

[noajthan]

Is there a website that lists the EU member countries that have the sort of agreement you mentioned?

Does the PR clock start ticking again from zero if a person did not pay CSI even if the gap between self employment and employment or vice versa was only one or two months? How liberal is this regulation?

This is EU law, all memberstates of EU follow this. Check the Directive.

No, if PR clock is reset to zero it means start the 5 years qualifying period for acquiring PR again (from zero).

There is no guidance on gaps. Anecdotally the odd few days may be overlooked. Don't bank on it.

EU law is quite binary, no fifty shades of grey.
If you meet the requirements you acquire PR (or a FP or a RC depending on the various stages of the lifecycle), if you don't you don't.

Does this friend even exist?
What is their timeline of dates/activities as a qualified person?

Are they an A8 or A2 national? (special considerations);
Ever been a student? (again special considerations to take care of)

Have they done any of the heavy lifting and read the relevant forms and guidance?

[elenailr]

'The friend' is just a way to anonymise my question.

The 'friend' is an A8 national. Would you be so kind please to tell me how the CSI regulation applies in this case if there is any difference from what we've disscussed so far?

When would a self employed person end self employment legally.
Is it from the last day the person receives payment or is it more flexible?

What if between the end of an employment and starting the next job/self employment 2-3 weeks goes by without any proof in that time of jobseeking.
Would that be something that restarts the 5 years or would it go through in this case (A8)?
Actually there was a period of self employment followed by a period of employment and then a period of self employment again. Is it possible to use that previous self employment in some way to cover the non-working and non jobseeking period after employment?

Is it possible at all to do anything retrospectively about this CSI matter that can make the situation better for the person seeking PR?

[elenailr]

You wrote this in another thread:

http://www.immigrationboards.com/eea-ro ... 94860.html

'if you do need CSI then be aware it cannot be back-dated.
Any period in UK when CSI was required but the person did not have CSI means that time in UK will not be counted towards obtaining PR.'

Does this mean that those few weeks I mentioned simply won't be counted in the 5 years then?
This could be a possibility. Also I read in that thread that after the end of an employment period a person has 'worker' status for 6 months.

Another one of your posts from that thread:

'Workers (exercising treaty rights) do not have to hold CSI.

(Such economically-active persons are not seen as a 'burden' to the state; presumably they contribute to the GNP kitty, & so to NHS, through taxes/NI contributions)'

What if someone in such situation makes back-dated voluntary payments of National Insurance? Would that prove to HO that the person was 'not a burden' on the state?

[noajthan]

'The friend' is just a way to anonymise my question.

The 'friend' is an A8 national. Would you be so kind please to tell me how the CSI regulation applies in this case if there is any difference from what we've disscussed so far?

When would a self employed person end self employment legally.
Is it from the last day the person receives payment or is it more flexible?

What if between the end of an employment and starting the next job/self employment 2-3 weeks goes by without any proof in that time of jobseeking.
Would that be something that restarts the 5 years or would it go through in this case (A8)?
Actually there was a period of self employment followed by a period of employment and then a period of self employment again. Is it possible to use that previous self employment in some way to cover the non-working and non jobseeking period after employment?

Is it possible at all to do anything retrospectively about this CSI matter that can make the situation better for the person seeking PR?

Selfemployment is not about receiving payment (alone), its about showing work is genuine and effective. Was yours?

If A8 you had to register for WRS if working any time up to April 2011. Did you?
If a student you need to have had CSI (or at a pinch EHIC). Were you/did you?

CSI is a form of insurance, you can't backdate it.
NI doesn't count as CSI.

If selfemployed you cant be a jobseeker beforehand. Only workers can be jobseekers
You can't slice and dice periods of activity around, the exercise of treaty rights has to be continuous.

Rather than trying to construct a timeline based on the rules much simpler to state your timeline.
After all you need to back it up with unimpeachable evidence.
What is your timeline and associated activities?.

[noajthan]

You wrote this in another thread:
http://www.immigrationboards.com/eea-ro ... 94860.html

...

Does this mean that those few weeks I mentioned simply won't be counted in the 5 years then?
This could be a possibility. Also I read in that thread that after the end of an employment period a person has 'worker' status for 6 months.

Another one of your posts from that thread:
'Workers (exercising treaty rights) do not have to hold CSI.

..

What if someone in such situation makes back-dated voluntary payments of National Insurance? Would that prove to HO that the person was 'not a burden' on the state?

NI is not an alternative for CSI.

Gaps may or may not be counted. Its up to the caseworker to weigh and assess them.
Very short may be overlooked but don't bank on it.

Not clear what you mean by

'worker' status for 6 months

- not based on a previous comment by me.

[robin92]

It's all a bit confusing, unclear.
Is the UKBA in general more likely to give somene a pr in an unclear case like this or not give it?

'So 170 + 70 inside 12 months would exceed 180 days.
170 + 70 split by the appropriate date would not (/might not) exceed 180 days.'

How about this scenario

240 split by the appropriate date? Would that exceed 180 days?

Maybe if the medical records are provided then that would tip the scale in favour of granting pr in a case like this.

You are not dealing with UKBA they were done away with years ago as not fit for purpose..

It is very clear actually. Meet the requirements and submit rock-solid evidence for the whole case or face refusal of confirmation of PR.

If there was a genuine medical reason then a one-off exceptional absence (up to 1 year) will be accepted.
That is if there is rock-solid evidence.
If the condition was so serious how could you/friend keep travelling?

HO plays hard ball and doesn't give benefit of doubt in granting confirmation PR.
You can't negotiate with them; you either qualify - and prove it with supporting evidence for the whole 5 year qualifying period - or you don't.

Hi,
I've similar situation. I entered UK in December 2015, so I will qualify to apply for PR on December 2020.
In September this year I will leave for 11months, I know about that absence over 6 months in 12 months would break the clock of PR.
The questions are , how HO counts this 12 months ?
From when I first entered ?
That case would be periods from December to December .
It is possible that if I leave September 2017 and stay for say 5,5 months , come back to UK for one week and leave again ?
This way on year December 2016 to December 2017 I would be absent from September to December , so it's 3 months.
Then from December 2017 would be 2.5 more months to reach 5.5 months.
So I will back in UK middle of January . I will back for a week and leave again another 5.5 months , is this possbile ?
And that one week I will stay in uk , does immigration care about if I'm just on holiday in that week ? I mean should I be a "qualified person " to don't break the continuity of residence ?

[Wise]

My opinion for you is to make your mind up as for where you intend to stay otherwise your plan is not good at this time of Brexit.

You may be out for 6 month in a year depending on when you first become qualify person in UK again the caseworker may look at it as you are not a genuine resident in UK and play a hard ball on you.


Play safe and make things easy for yourself if you can.


Good luck.