EEA DCPR: Is it wise to send evidence of long absence?

[salmintin]

I was absent for more than 6 months, however the absence is split between two qualifying years so my application cannot be refused on the basis of breaking the residency requirement - because I did not break it.

I can actually provide evidence that I was abroad: flight booking receipt, bills and letters from abroad etc.

However can this backfire? Can they say something like "Wait a second, looks like this guy actually decided to leave the UK for good and he changed his mind after 6 months" and then refuse me? Or the reason for my absence will not matter at all? During that time I did not have a UK address, because I was not resident here, but abroad.

[noajthan]

You cannot pretend you were in UK when you were not.

Under 6 months the reason for absence is immaterial and continuity of residence is not broken. You have the full power and weight of EU law behind you.

[salmintin]

You cannot pretend you were in UK when you were not.

Yep, I know. I think my original post was a bit confusing.

Basically I have to choose between:

1. Telling them I was absent between X and Y (more than 180 days absence in one go, however they fall in separate qualifying years) and nothing else.

or

2. Telling them I was absent between X and Y AND give them evidence of that absence, such as bills from other countries etc. I wasn't working, it was mostly like a long holiday in my home country, but I have plenty of evidence that I was abroad between X and Y and I don't know if I should include it.

The point of 2 is to show them beyond reasonable doubt that I was absent from the UK.

However I don't know if there's anything from my absence that they can interpret in such a way that they decide to refuse me. From what I've read, if the absence is less than 180 days in any qualifying year, they do not care why you were absent. You could've moved abroad and changed your mind, you could've worked or done nothing. They won't question it.

[salmintin]

To give more context:

I did #1 from previous post and was refused because the caseworker was not paying attention at the dates when I was absent. He refused me because I did not provide any evidence of exercising treaty rights for 6 months between X and Y - dates when I was absent (I did make this clear in my application).

Now at the appeal I would like to say something along the lines of:

As specified in my original application, I WAS absent between X and Y and here is evidence that proves beyond reasonable doubt that that was the case.

I want to be really safe and make sure that no evidence I give them will make them go "Hang on, he wasn't supposed to do that* whilst absent, therefore we must refuse him".

* Where "that" means for example work, study, volunteer, have medical treatment etc.

[noajthan]

The reference point is EEA regulations and Directive 2004/38/EC not what a caseworker thinks or feels or is unaware of.

Simply point out your absence was in compliance with EEA Reg 3 - job done.
http://www.eearegulations.co.uk/Latest/ByPage/part1_3

[secret.simon]

Does the concept of splitting a long holiday across qualifying years even exist in the EEA route?

[noajthan]

Does the concept of splitting a long holiday across qualifying years even exist in the EEA route?

Yes, because continuity of residence applies in 12 month periods - but the pivot point is unclearly defined.

[secret.simon]

the pivot point is unclearly defined

As is pretty much all of EU law.

My point is the ambiguity of the phraseology of the law could be interpreted such that the break should not exceed six months in one go. That is to say that if I insert a pivot point at any part of the qualifying period, no more than six months of the year should have been spent outside the UK of that pivot period. So, if I chose the pivot period as the start of the OP's long break, he will have clearly failed to have acquired PR.

This incidentally has been remarked as being one problem regarding transposing EU law into UK law with the Great Repeal Bill. UK law is written in much more specific language (compare the detail in the UK Immigration Rules to the ambiguity of the EEA Regulations) and once transposed, the language of the EU law may have to be rewritten to the UK's more detailed style. That in itself will keep lawyers busy for years, never mind transposing any new EU laws that we may wish to transpose on the fly.

[noajthan]

the pivot point is unclearly defined

As is pretty much all of EU law.

My point is the ambiguity of the phraseology of the law could be interpreted such that the break should not exceed six months in one go. That is to say that if I insert a pivot point at any part of the qualifying period, no more than six months of the year should have been spent outside the UK of that pivot period. So, if I chose the pivot period as the start of the OP's long break, he will have clearly failed to have acquired PR.

This incidentally has been remarked as being one problem regarding transposing EU law into UK law with the Great Repeal Bill. UK law is written in much more specific language (compare the detail in the UK Immigration Rules to the ambiguity of the EEA Regulations) and once transposed, the language of the EU law may have to be rewritten to the UK's more detailed style. That in itself will keep lawyers busy for years, never mind transposing any new EU laws that we may wish to transpose on the fly.

My understanding is the pivot point is based on the anniversary of applicant's entry into concerned country, eg UK.
However, and anecdotally, HO may (sometimes) apply the pivot point by counting back from date of application.

So its not clear that in practice its a constantly movable feast.
And certain case law suggests the intent behind absence is critical and may be more important than a hard and fast 6 months drop-dead cut-off point.

[secret.simon]

And certain case law suggests the intent behind absence is critical and may be more important than a hard and fast 6 months drop-dead cut-off point.

Indeed. Appropriate reason/intent may mean that the absence is treated under the one-year unavoidable absence clause rather than the six-months-in-a-year clause.

[Obie]

In regards to this, the law is clear.

Every Union Citizen have their own individual qualifying period.

Period of 6 month in today, during any year of that qualifying period does not break continuity, for longer period reasons are needed.

The Upper Tribunal, has established, that residence does not merely means physical presence, that other factors may lead to the conclusion that a person was residence in the UK, even if they were not physical present.