exercising treaty rights when working overseas for UK org?

[cass]

Would very much appreciate some advice. I am EEA citizen, married to non-EEA citizen, residing in UK.
For several years I have been working for British NGOs in humanitarian relief and spend the majority of my time out of the country - sometimes up to 10-11 months per year. I am contracted and paid in the UK; my wife remains in the UK and works.
Does this time working overseas count towards my five years of 'exercising my treaty rights', for my wife's EEA4 application? Thanks

[Lucapooka]

If you stay away for more than six consecutive months you will break your residence.

[CoolGirl1984]

If you stay away for more than six consecutive months you will break your residence.

True, but he works for UK company and pays taxes in UK...

[Lucapooka]

That's not relevant. It would only matter if it were one single absense of up to twelve months but the OP seems to be regularly absent for six months and has done this more than once.

For your residence in the United Kingdom to be considered continuous, you should not be absent from the United Kingdom for more than six months each year. Longer absences for compulsory military service will not affect your residence. Additionally, a single absence of a maximum of 12 months for important reasons such as pregnancy, child birth, serious illness, study, vocational training or posting overseas will not affect your residence.

[Directive/2004/38/EC]

Nice question. Nobody here is going to be able to give you a definitive answer.

I would suggest you keep a careful record of you employment in the UK and your times outside the UK. When you and your wife apply for recognition of your permanent residence, you may or may not need to fight for it by appealing a rejection.

But since you are paid and resident in the UK the whole time, I suspect you will have a decent argument.

You have nothing to loose!

If you stay away for more than six consecutive months you will break your residence.

This is actually not correct.

You take the start date of your residence in the UK, which is usually when you started living in the UK (though it might be more complex in your case). You then look for at least 6 months in each year anniversary of the start date.

So if you arrived in March 08, you would look at 6 months from March 08 to March 09, then 6 months from March 09 to March 10, etc...

[Jambo]

True, but he works for UK company and pays taxes in UK...

He didn't say he was paying taxes. Just that he was paid in the UK. If he is not present in the UK for long periods, it would be (tax) wise to claim relief on those earnings (but that's another story).

The regulations allow long absences without breaking residency. It all depends how long your breaks are.

[CoolGirl1984]

True, but he works for UK company and pays taxes in UK...

He didn't say he was paying taxes. Just that he was paid in the UK. If he is not present in the UK for long periods, it would be (tax) wise to claim relief on those earnings (but that's another story).

The regulations allow long absences without breaking residency. It all depends how long your breaks are.

He mentioned he's contracted and he's paid in UK. It's obvious that taxes go to HMRC and not a different country.

[Lucapooka]

You take the start date of your residence in the UK, which is usually when you started living in the UK (though it might be more complex in your case). You then look for at least 6 months in each year anniversary of the start date. .

So if it's cumulative that makes his situation even worse.

[Lucapooka]

He mentioned he's contracted and he's paid in UK. It's obvious that taxes go to HMRC and not a different country.

Take me for example. I work for a UK company and am paid in the UK. I don't pay UK income tax as I am not ordinarily resident in the UK. You seem to be assuming that working for a UK company and paying tax in the UK equates to being resident in the UK. It doesn't!

I can't see anything in the permanent residence guidance that suggests absence will be overlooked for people in his work situation (whether or not he pays UK taxes), other than the one single absence previously cited.

[CoolGirl1984]

He mentioned he's contracted and he's paid in UK. It's obvious that taxes go to HMRC and not a different country.

Take me for example. I work for a UK company and am paid in the UK. I don't pay UK income tax as I am not ordinarily resident in the UK. You seem to be assuming that working for a UK company and paying tax in the UK equates to being resident in the UK. It doesn't!

I can't see anything in the permanent residence guidance that suggests absence will be overlooked for people in his (and my) work situation, other than the one single absence previously cited.

If you are out of the UK for more than 182 days a year you are not residing in this country. If the base company is in UK, you will pay tax in UK.

Some people play this trick and switch between countries to avoid paying any tax. And if you do so.... Basically you are a resident nowhere...



I work in Payroll, Tax and Finance Department, so a bit of knowledge and experience is here
But, relating that to Residence Card, if you are physically away from UK you can put your Card in jeopardy...

[Lucapooka]

If you are out of the UK for more than 182 days a year you are not residing in this country.

No, it does not work like in the long term. You need to average less than 91 days per year averaged over four years. That's how ordinary residence is calculated for tax purposes.

None of this, of course, is relevant to the immigration rules and the OP's question.

[Lucapooka]

Just read HMCR6 if you are unsure of the rules.

[CoolGirl1984]

Just read HMCR6 if you are unsure of the rules.

" 183 days or more in any tax year or an average of 91 days or
more in a tax year" So not 4 years... especially when thee is a tax year, you can just claim taxes back ie for 2011/12 till 2016.... Anyway, going home now.
Wish you all good luck.

[Directive/2004/38/EC]

Wow! What a conversation on tax.

[cass]

Thanks to all for the discussion. It seems the answer is not conclusive, and we will have to try our luck with the HO.
In my case I have had repeated trips back to the UK, but there has also been two absences of more than 6 months. I will have to carefully construct the record of entry/exit.

Briefly on the tax issue, since it was picked up in the discussion - when working overseas for extended periods you do lose your UK tax resident status and therefore your liability to pay UK income tax, regardless of being contracted and paid in the UK. However, I don't think this is relevant to the immigration/HO question.

[Jambo]

Thanks to all for the discussion. It seems the answer is not conclusive, and we will have to try our luck with the HO.
In my case I have had repeated trips back to the UK, but there has also been two absences of more than 6 months. I will have to carefully construct the record of entry/exit.

Please note that you can play around with the 5 years starting date in case that will help you to split the long absences over 2 years (although not sure this would work for a continuous break that starts at the end of one year and continue into the beginning of the next year).

[fysicus]

The six months refer to the total of all absences (from the UK) in a single year; it does not need to be a single absence of more than six months.

However, this only becomes important when you (personally) would want to get PR under EEA rules (EEA3).

Your wife clearly was not absent for more than six months in any single year, so I would expect her application for PR (EEA4) to be successful.

Your situation is not so uncommon, a sailor in the merchant navy is likely to face the same issues.
It would be a very disproportionate negative side effect if the residence rights of family members would be adversely affected in such situations.

[Lucapooka]

Your wife clearly was not absent for more than six months in any single year, so I would expect her application for PR (EEA4) to be successful.

Her residence is linked to the EU national, so if he broke residence (for PR purposes) then so did she.

[fysicus]

I think you have a very shortsighted attitude to the law: are you a lawyer by any chance?

I used the phrase disproportionate negative side effect not without reason.

This seems to me a case that was not foreseen when writing the law. However, there is a general principle that all individual circumstances of the applicant must be taken into account. OP can not be blamed for the fact that his employer sends him on business trips abroad for more than six months a year, and it would be very unreasonable to expect him to give up this job because of that.
If I were a caseworker at UKBA, I would probably let the EEA4 application be successful.

[Lucapooka]

OP can not be blamed for the fact that his employer sends him on business trips abroad for more than six months a year, and it would be very unreasonable to expect him to give up this job because of that.

There is no blame attached and no-one is expected to give up employment. The rules on residence are very clear for both UK and EU applicants. If someone is hoping to claim ILR or PR (although they are not obliged to do so) they have to consider the residence requirements beforehand and remain in the UK for the prescribed period, otherwise they can continue to remain under their current status and not bother to claim PR.

If I were a caseworker at UKBA, I would probably let the EEA4 application be successful.

Good for you, well done!

[Directive/2004/38/EC]

There is also the EU law concept of a cross boarder worker. In that case the EU citizen lives in one country and works in another. They have to return to their living country at least once a week.