Renew Residence Card SS Route

[thewhittaker]

Hello all,

I'd like to get some insights about renewing residence card.

I've obtained the residence card though SS route in 2013. (I entered UK before getting RC by about 3 months)

1st year from entering UK, I was absent by about 8.5 months. (with hubby + son)
2nd year, absence was 10.5 months. (with hubby + son)
3rd year, absence was 5.5 months. (with hubby for 5 months + son)
4th year, absence so far has been 7 weeks. (Hubby is in UK - I am in my hometown with our son)

Since getting the RC, the absence was basically due to jobs (hubby got employed somewhere else not in EU).

So I understand that I'll not be qualified for PR after my current RC is expired.

As we are now in UK (likely to be a long term one), I think I can count my 3rd year as a starting point towards my PR.

But since my RC will be expired before getting 5 years PR qualified period, my question is should I reapply for RC when my current one expires or should I apply for a new one now?

Thank you in advance for your insights.

[member]

Does the EEA RC obtained via SS route get invalidated if the sponsor is absent from the UK over 6 months?

[noajthan]

Its possible that, due to the breaks in continuity of residence, the BC sponsor will have lost the right to sponsor you as a family dependent under EU rules.
Not sure.

Even if one prolonged absence was for a one-off and exceptional reason, (eg military service, pregnancy, study leave - or some combination of these) there have been two periods of over 6 months away,

I doubt that simple economic migrancy is a good enough reason for more than 6 months absence;
it does not help to foster and bolster the family unit's cohesion and integration into the host memberstate.

The question is whether BC is still treated as an EEA national, and can continue to sponsor someone on returning to UK, after the PR clock has been reset to zero.

If, having returned to UK, the BC is considered solely as a BC again (as per UK law) then the ability to sponsor a family member will have been lost unless/until SS route is repeated.
It is likely the previous RC (which is not a 'visa') had become null and void (even before it expired) due to this change of circumstances.

[thewhittaker]

Hi Thanks for both insights.

I previously posted asking question about returning to UK and got info as below:

You are the family member of an UK citizen who has worked elsewhere in the EU. So you are covered by the ECJ case of Singh. You have the right to be treated as the spouse of an (non-UK) EU citizen now and in the future, so long as you are entering the UK with your spouse.

ECJ MRAX also applies in this case. So if you happen to not have a "needed visa" then then they still have to admit you (see http://eumovement.wordpress.com/2010/08 ... to-travel/ )

You need to get on the airplane. An immigration status document with a date which is not expired may well do that.

Finally you need to present yourself at the border for entry into the the UK. Remember that all UK immigration officals have detailed records of your history, so they should be able to see that you are covered by Singh. But it is worth to travel with your marriage certificate and proof that you were previously covered by Singh. (http://www.immigrationboards.com/eea-ro ... 40-20.html)


So apart from husband is not eligible to sponsor me anymore, will I have trouble getting into the country with my son (British) this time?

Thank you.

[noajthan]

Hi Thanks for both insights.

I previously posted asking question about returning to UK and got info as below:

You are the family member of an UK citizen who has worked elsewhere in the EU. So you are covered by the ECJ case of Singh. You have the right to be treated as the spouse of an (non-UK) EU citizen now and in the future, so long as you are entering the UK with your spouse.

...

Finally you need to present yourself at the border for entry into the the UK. Remember that all UK immigration officals have detailed records of your history, so they should be able to see that you are covered by Singh. But it is worth to travel with your marriage certificate and proof that you were previously covered by Singh. (http://www.immigrationboards.com/eea-ro ... 40-20.html)

So apart from husband is not eligible to sponsor me anymore, will I have trouble getting into the country with my son (British) this time?

Thank you.

That old post (2014) does not appear to address prolonged absences.

If hubby was a true Union citizen it would be simple.
Come back to UK after x months, enter country with spouse, spouse exercises treaty rights (or has PR) and PR clock starts up again (from zero);
you would clearly have the right to reside & etc for as long as UK stays in EU.

However, if continuity of residence is broken by a least one of your absences (and I suspect it will have been) then the question is:
is hubby now back to being just a default BC or is he still considered as a proxy EEA national

If only a BC then, yes, you will face difficulties both getting on a plane and also at the UK border if you have no visa (in any shape or form).
You don't 'inherit' any entry rights from your child, especially as he has another parent (who is a BC).

You may find you have to reapply for a FP (based on your original SS-related evidence).

Worst case: switch to UK immigration route and spouse visa.

[thewhittaker]

Thanks again for your insight.

I think I'll have to take chance with my Residence card to board the plane.

Thank you again.

[Richard W]

Its possible that, due to the breaks in continuity of residence, the BC sponsor will have lost the right to sponsor you as a family dependent under EU rules.
Not sure.

Even if one prolonged absence was for a one-off and exceptional reason, (eg military service, pregnancy, study leave - or some combination of these) there have been two periods of over 6 months away,

I doubt that simple economic migrancy is a good enough reason for more than 6 months absence;
it does not help to foster and bolster the family unit's cohesion and integration into the host memberstate.

I don't see anything in the wording of the regulations that breaks the 'as though EEA national' part. The SS principle is different to the PR principle, and predates it. The point of SS is to avoid discouraging movement between member countries, and refusing the OP entry now would discourage it. PR, on the other hand, enables citizens to put down roots in their new home.

On the basis of precedent, the OP seems not to have had any trouble using her residence card after previous long absences, though of course the analysis of movements could have improved.

If the OP plans to work in the near term, I suggest she apply for a new RC after starting work and when it is 4 years old. She then has one year to sort out any problems before her employer will ask to see a CoA or new (P)RC.

[noajthan]

Someone using a no longer valid RC and noone happening to question it does not create a precedent nor validate it. It simply defers the acid test.

There is not an EEA Regulation for doing SS once then going off round the world 3 or 4 times.
However EEA Regulation 3 covers absences. And Regulation 9 is not declared to be exempt.

Even if one trip away was exceptional (doubtful as it appears the trips were just for economic gain rather than edification), the second prolonged gig would have broken residency.

No problem for a real EEA citizen but the sponsor here is not an EEA national.
What is unclear is if sponsor returns to Blighty as a proxy EEA national or as just a regular Joe Bloggs/BC;
ie when returning after a prolonged absence from UK (rather than after a sojourn in a memberstate doing SS).

Reapplying for a FP (for OP) now would confirm and give OP time to relocate to a memberstate to redo SS (or switch to a UK spouse visa) if need be.

Waiting a year or two then discovering they have no basis to remain in UK leaves them up a creek without the proverbial.

[Richard W]

However EEA Regulation 3 covers absences. And Regulation 9 is not declared to be exempt.

Regulation 3(1) declares the scope of Regulation 3:

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

Moreover, the only periods in Regulation 9 are the periods spent in the other EEA country.

[secret.simon]

Prima facie, Richard W seems to be correct.

The OP has a Residence Card issued under Regulation 13 (read with Regulation 9).

Regulation 3 applies to Regulations 5(1) (which defines a worker who has ceased activity) and 15 (which lays out how the PR clock works) and hence does not apply to the OP's British spouse because British citizens are not required to be exercising treaty rights in the UK anyway.

There is no regulation that states the period of time for which a family member needs to be resident in the UK for the purpose of maintaining residency.

So the OP is likely to get her Residence Card renewed.

The only possible fly in the ointment that I foresee is if the OP's British spouse needs to meets the requirement of Regulation 9 again at the renewal. S/he could fail the test because Regulation 9(2)(c) requires the center of the British spouse's life to be in another EEA country and the OP had mentioned that the British spouse was employed outside the EU.

Assuming the RC is renewed, the OP's PR clock could start in the 3rd year as she has absences of less than 6 months, as the OP correctly surmised.

[noajthan]

There is no regulation that states the period of time for which a family member needs to be resident in the UK for the purpose of maintaining residency.

So the OP is likely to get her Residence Card renewed.

The only possible fly in the ointment that I foresee is if the OP's British spouse needs to meets the requirement of Regulation 9 again at the renewal. S/he could fail the test because Regulation 9(2)(c) requires the center of the British spouse's life to be in another EEA country and the OP had mentioned that the British spouse was employed outside the EU.

A family member can not spend say 1, 2, 3, or 4 years outside UK and still expect to be considered a family member resident in UK.
How long outside then? How about 6 months - as per Reg 3.
When applying for DCPR the periods over 6 months abroad will certainly have reset the OP's PR clock. That's very clear.

What is not clear is whether the sponsor has lost the ability to be a proxy EEA national.
After all there is no case law for doing SS then travelling the world; only the scenario of leaving one-time and then returning to UK.

P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom

If he has now lost his EEA attributes by not residing in UK then sponsor cannot sponsor OP for any RC renewal or for a DCPR.

There is a risk the RC could be revoked at the border too; a slight risk admittedly as, so far, our tax £££ appear to be financing sleeping IOs.

The longer OP leaves it to apply the acid test the less time there would be to fix this if anything is amiss. And with the end-stop of Brexit she may only get one shot.

[thewhittaker]

Thanks again for insightful info.

Can I ask if there is any difference between 1 long absence in a year and 2 short absences combined over 6 months in a year?

Ex: ---> 1 Jan - 1 Sept
----> 1 Jan - 30 May & 1 Jul - 1 Dec


Thank you

[thewhittaker]

I couldn't edit the post so I want to clarify that short absence is absence less than 6 months in my meaning (I know my absence is not 'short')

Thank you.

[Richard W]

When applying for DCPR the periods over 6 months abroad will certainly have reset the OP's PR clock. That's very clear.

And undisputed.

What is not clear is whether the sponsor has lost the ability to be a proxy EEA national.
After all there is no case law for doing SS then travelling the world; only the scenario of leaving one-time and then returning to UK.

P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom

If he has now lost his EEA attributes by not residing in UK then sponsor cannot sponsor OP for any RC renewal or for a DCPR.

The question is whether the word 'before' in the regulation should be read as 'immediately before' or similar.

There is a risk the RC could be revoked at the border too; a slight risk admittedly as, so far, our tax £££ appear to be financing sleeping IOs.

If the sponsor is in the UK or accompanying the OP, any revocation should be on the basis that SS no longer applied. If a decision to admit is made, revoking the card would waste money, some of it the taxpayers'.

[noajthan]

I couldn't edit the post so I want to clarify that short absence is absence less than 6 months in my meaning (I know my absence is not 'short')

Thank you.

Up to 6 months absence in a 12 months period is acceptable without issue. Whether the absence is piecemeal or in one continuous block.
My understanding is the 12 months period is based on date of entry in UK (not calendar year).

Only one one-time, one-off absence of (over 6 months) up to 12 months is acceptable. For exceptional reason(s).

Ref UK's EEA Regulation 3:
http://www.eearegulations.co.uk/Latest/ByPage/part1_3

Or go to the source of truth, see Directive 2004/38/EC of the European Parliament and of the Council.

For residence cards, see Article 11(2).

The validity of the residence card shall not be affected by temporary absences not exceeding 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

Similarly for DCPR, see Article 16(3).

http://eur-lex.europa.eu/LexUriServ/Lex ... 123:en:PDF

[thewhittaker]

Thank you all for your reply.