10 months study abraod and PR

[chmielim]

Hi All,

As we all know the referendum gets closer and closer day by day.

You guys are at least in the country should the worst happen unlike me.
So here is my situation:

I am currently on a study abroad programme in USA as part of my university degree that I study in London.
I left in August 2015 and I am going to be back in May, roughly 10 months. I know that in order to qualify, EU national needs to live in the UK for continuous 5 years, breaks up to 6 months allowed (reasons such as study is treated as an exception to this rule) So I am not worried about it, but I don't understand how will it affect me.

I came to UK in May 2011 thus I can apply for PR in May 2016. Good timing heh ? but I am wondering, I am spending 10 months in US, does it mean I can I apply in May 2016 or do I need to wait another 10 months because technically within those 5 years I spent 10 months in US thus, does it mean I need to wait another 10 months from May 2016.

I have been in employment most of the time, and at university ( with Insurance) as well had a period of 3 months when I was unemployed but I was on JSA.

May 2011 - Dec 2011 employment
Jan 2012 - March 2012 - JSA
April 2012 - May 2013 - employment
June 2013 - time off, travel within UK ( did couple of days for temp agency)
July 2013 - August 2015 - employment (October 2014 - present University)
August 2015- May 2016 - USA study abroad

Hope you guys bring me a good news!

[LilyLalilu]

You can apply in May 2016 and do not need to wait another 10 months, one single absence up to 12 months for important reasons such as study doesn't break your residence, nor does it push it back.
See the last post in my thread where I had a similar query: http://www.immigrationboards.com/eea-ro ... l#p1290190

I note that you weren't technically exercising treaty rights for one month in June when you were travelling, however, I heard that breaks up to 1 months are usually ignored so you should hopefully be good.

[noajthan]

I am currently on a study abroad programme in USA as part of my university degree that I study in London.
I left in August 2015 and I am going to be back in May, roughly 10 months. I know that in order to qualify, EU national needs to live in the UK for continuous 5 years, breaks up to 6 months allowed (reasons such as study is treated as an exception to this rule) So I am not worried about it, but I don't understand how will it affect me.

I came to UK in May 2011 thus I can apply for PR in May 2016. Good timing heh ? but I am wondering, I am spending 10 months in US, does it mean I can I apply in May 2016 or do I need to wait another 10 months because technically within those 5 years I spent 10 months in US thus, does it mean I need to wait another 10 months from May 2016.

I have been in employment most of the time, and at university ( with Insurance) as well had a period of 3 months when I was unemployed but I was on JSA.

...

Hope you guys bring me a good news!

Congratulations for having the foresight to put health insurance in place whilst studying.

The HO do have some internal guidance for decision makers (DMG);
that suggests that timelines for PR should be extended by the length of absences from UK.
(Perhaps a career in HO immigration beckons for you?!).

However this is all contrary to EU law.

Strangely this same DMG guidance intimates that gaps of up to 30 days may be passed over..

My understanding is along lines of previous poster - 5 years means 5 years
shoot for May 2016.

Continuity of residence is governed by Regulation 3, particularly 3.2(c)
http://www.eearegulations.co.uk/Latest/ByPage/part1_3

[Obie]

The HO do have some internal guidance for decision makers (DMG);
that suggests that timelines for PR should be extended by the length of absences from UK.

That is news to my ears.

I must say I have never had the misfortune of seeing this kind of guidance , and I have been associated with PR apps for many years and never have I seen a refusal on that basis. If it does exist, which I don't dispute may well be true, it will be so outrageous that i will not give it the dignity of dissecting it's erroneous nature..

[noajthan]

The HO do have some internal guidance for decision makers (DMG);
that suggests that timelines for PR should be extended by the length of absences from UK.

That is news to my ears.

I must say I have never had the misfortune of seeing this kind of guidance , and I have been associated with PR apps for many years and never have I seen a refusal on that basis. If it does exist, which I don't dispute may well be true, it will be so outrageous that i will not give it the dignity of dissecting it's erroneous nature..

Obie, I am willing to share the link as a matter of record & for other member's perusal.

Ref: https://www.gov.uk/government/uploads/s ... -16-15.pdf

Para 4 is the point I have become aware of and alluded to above:

Although these absences do not break the continuity of the residence requirement, they do not count towards the accrual of the 5 years continuous residence.

This is because these absences will generally be periods when the claimant is not exercising a right to reside as defined within the EEA regulations.

Similar guidance is to be found echoed here in a Housing Benefit-related document:
https://www.gov.uk/government/uploads/s ... 8-2015.pdf
- see para 6

My concern is of course whether caseworkers use it, in the determination of PR (&/or housing benefit), to the detriment of hard-working & hard-pressed EEA nationals (& their dependents).

Similar concerns have been discussed by members of the legal profession, for example here (where I first came across this DMG Memo):
http://www.rightsnet.org.uk/forums/viewthread/8521

[Obie]

I am most grateful to you for your time in uploading it.

Contrary to my previous understanding, this is not Home Office guidance, and it was not created for the purpose of determining PR application .

It is clearly an erroneous documents , but I am less agitated that it was not issued by Home office, who I believe ought to know better.

[LilyLalilu]

Solvit/YourEuropeAdvice have confirmed that this DWP guidance on continuous residence for PR contradicts EU law, however, they also assured me that the HO would not base their PR decisions on these DWP guidelines.

[Obie]

Solvit/YourEuropeAdvice have confirmed that this DWP guidance on continuous residence for PR contradicts EU law, however, they also assured me that the HO would not base their PR decisions on these DWP guidelines.

They can't be sure for certain. If they cannot stop the government from doing it in order to unlawfully deprive a person of their lawful right to benefit, how can they stop the Home office from using it to refuse PR unlawfully?

Solvit and Europe Advice are just a waste of space. UKVI gives more regards to a failed asylum seeker than them.

I think the only language the DWP and UK VI understands Is force. Either fighting them at the CJEU or the domestic courts.

For example look at the hopeless WRS case that they are challenging at the court of Appeal, which incidentally is bound to fail.

[Chmielu]

Well actually I was laid off work at the end of April, I have a payslip from April 2013 and then I have a payslip from end of June. So entire may I did not work and half of June I did not work. I haven't sign up on jsa because I was confident I finding a job, I have couple of agreements with temp agencies from May/June 2013 period, couple of invitations to interview (emails) and plenty of my email where I was applying for a job. Would that suffice to prove that I was looking for a job, I was eligible under jobseeker even though I did not sign up on jsa???

[noajthan]

Well actually I was laid off work at the end of April, I have a payslip from April 2013 and then I have a payslip from end of June. So entire may I did not work and half of June I did not work. I haven't sign up on jsa because I was confident I finding a job, I have couple of agreements with temp agencies from May/June 2013 period, couple of invitations to interview (emails) and plenty of my email where I was applying for a job. Would that suffice to prove that I was looking for a job, I was eligible under jobseeker even though I did not sign up on jsa???

If that's what you've got that's what you've got. Print them all off.

It would have helped to sign up with JobCentre (just for sake of applications such as this).

All you can do is collate & submit your evidence.
(Don't forget to keep scans & copies of all evidence & forms you submit - for your reference)