A fresh look at attaining a right of permanent residence in the UK

On 17 October 2013, we saw an exciting Judgment from the Upper Tribunal confirming that permanent residence in the UK for EEA nationals and their family members can be attained even though they were overseas during a portion of their 5 year qualifying period.

In the recent case, the court concluded that the right of permanent residence under the 2006 EEA Regulations is capable of being established whilst the EEA national and/or their family member is outside the host nation.

In brief, this case concerned a young man (a non-EEA national), whose mother, also a non-EEA national married an Irish National. The family unit then took up residence in the UK and he and his mother obtained a 5 year EEA Residence Card.

However, during this 5 year period, the family travelled to Ireland for the purpose of his mother giving birth to his sister. During the time in Ireland, he took up schooling and did not return to the UK until 22 months later.

The core questions posed to the Upper Tribunal were whether the time he spent outside the UK broke the continuity of residence required to obtain permanent residence and if  not, whether UK permanent residence could be acquired whilst he was in Ireland.

The court meticulously reviewed relevant case law which discussed such points of law and also the effective wording of the Citizens Directive, together with the Immigration (EEA) Regulations 2006.

The court found that whilst permanent residence can be obtained overseas as there are no regulations, articles or directives preventing this from occurring, claims to permanent residence must still be linked with integration to the host member state and the stay abroad must not be permanent.

In this instance, the young man concerned was a minor at the time of his absence from the UK and was studying whilst he was in Ireland. Both he and his mother believed that he would return to the UK and were able to establish that he had sufficient integration before his departure from the UK and also following his return. There were also other factors which prevented him from returning during those 22 months which were taken into consideration by the Tribunal.

The court also confirmed that in order for continuity of residence not to be broken, the absence ought to be temporary and the absence ought to be for “an important reason”.

Again, in this case, although his total absence was 22 months, the time from him being outside the UK and him qualifying for permanent residence was less than 12 months and therefore did not breach core regulations or the Article under the Directive.

EU Law relating to rights and freedom of movement is still relatively young by comparison with other areas of Law and continues to develop on a daily basis. Increasingly, EU laws on freedom of movement of persons look at the practical side of life and can have a very positive impact for EU nationals and their family members.  

If you require further information regarding this judgement, please feel free to contact us on 0207 001 2121.

 

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