Absences from the UK

[peterkaml]

Hello,

How many days of absence from the UK in a year count as more than 6 months for the EEA PR application - are 182 days still fine and 183 not any more (unless you have a serious reason for a one-off absence)? I have a friend who is very close to the limit and we haven't found any guidance on this.

Thank you!

[GMB]

"6 months" is usually taken to mean 180 days, but this isn't written anywhere that I've seen. Two important points:
1. The day of departure and the day of return do not count towards the 180 days, so leaving on a Friday and returning on a Sunday is 1 day of absence, not 3.
2. The 6 months is per any 12 month period, not per calendar year; so the clock does not re-set on 1 Jan giving the person a new allowance of 180 days. It's a rolling period, meaning you have to look back 12 months from the day of return from the last trip.

[EEA National]

You could apply 28 days before the date you qualify and I might be mistaken , but there is a discretion for more than 182 days, all depends from the case worker. Also there are circumstances like pregnancy, study or illness that can be exuse for long periods of absence. That is if you can prove it. Work related absences included.

[CR001]

You could apply 28 days before the date you qualify and I might be mistaken

You are mistaken. There is NO '28 days early/before' concession for PR applications under the EEA/EU route. Applicants must have the full 5 years residence.

The 28 days rule is specific to UK Immigration route visa applications.

[EEA National]

My apologies, I was thinking about ILR, that quote:
"Calculating the specified continuous period
Applicants can submit a settlement application up to 28 days before they would
reach the end of the specified period. However, the specified continuous period is
always counted backwards from the date the ILR application is submitted. For
example, if an applicant would have reached the end of a specified 5 years with
leave in a qualifying route on 30 November 2016 and they apply on 11 November 2016"

[secret.simon]

ILR is issued under the UK Immigration Rules and allows the application to be made 28 days in advance.

PR, which is acquired automatically under EU Law, requires five continuous years of exercising treaty rights (or being the family member of such a person). EU law has no 28 days in advance provision.

Returning to the OP's question, for the purpose of calculating continuity of residence for ILR under the UK Immigration Rules, a "month" is calculated as 30 days (Page 10 of the Long Residence Guidance). Thus a 6 month visit visa issued under the UK Immigration Rules is for 180 days.

There is no definition of a month for the purposes of EU law. But, given the absence of a definition of a month in EU law, the Home Office would likely use the same definition of a month for EEA applications as well.

There is no discretion under EU law. Under EU law, PR flows from the law itself and not from a grant. Therefore, the Home Office has no discretion in granting PR, because it does not grant PR. It merely certifies whether the PR granted by the law exists.

I think EEA National is confusing quite a few elements of ILR (which is a grant and discretion can be exercised) and PR (which is an automatic grant of the law and therefore discretion cannot be exercised) both of which are separate and distinct legal statuses, under different laws and different rules and regulations.

As EEA National has mentioned above, you are allowed one absence of upto a year for an important reason such as pregnancy and childbirth, illness and military service.

[Richard W]

There is no discretion under EU law. Under EU law, PR flows from the law itself and not from a grant. Therefore, the Home Office has no discretion in granting PR, because it does not grant PR. It merely certifies whether the PR granted by the law exists.

Actually, there are several cases in practice where discretion has been exercised, rather than a best attempt to follow the EU law.

Firstly, there is the McCarthy transitional arrangement for those who had benefited from the misapprehension that dual nationals' British citizenship could be ignored. Thus the EU-wide law on who was necessarily a family member of an EEA national was being ignored. Secondy, the Home Office will claim discretion on admitting EFMs to the status of family member.

Thirdly, there is (or was) a concession that the lack of CSI would be overlooked for some students who had been issued residence cards despite the lack of CSI. This is directly ignoring the EEA regulations as to who does or not does have PR.

Therefore, I would say that in practice, the UK does grant the EEA rights of residence and even PR to those who are not entitled to it.

Finally, there is Article 37 of the Directive, 2004/38/EC:

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

In short, the Home Office does have the right to exercise discretion in favour of applicants.