Continuity of Residence Case Study: Babajanov (Continuity of Residence – Immigration (EEA) Regulations 2006 [2013] UKUT 00513 (IAC)

One of the main obstacles in EEA Permanent Residence applications is satisfying the Continuity of Residence requirement. Applicants must be able to demonstrate that they have been resident in the UK for 5 consecutive years and must have been exercising their Treaty Rights during that period. Whilst Applicants are entitled to have some periods of absence from the UK it should be noted that the periods of absence should not exceed 6 months in any one year unless the absence falls under the exception given under Regulation 3 (2) of the EEA Regulations 2016. The Ruling in Babjanov clarified whether absences longer than 6 months in any one year in the qualifying period automatically breaks the Continuity of Residence.   

Continuity of Residence: Background of Babajanov [2013] UKUT 00513 (IAC)

The Claimant was a citizen of Azerbaijan born on 11 May 1991. The Claimant was appealing the First Tier Tribunal’s decision to refuse his appeal against the Secretary of State’s decision in refusing to issue him with a document certifying Permanent Residence in the UK. In this particular case, the Claimant had excessive absences and the court was asked to provide some guidance on when the Continuity of Residence would be broken and to clarify what exceptions apply under Regulation 3 of the EEA Regulations 2016.

The Law on Continuity of Residence Under the Immigration (European Economic Area) Regulations 2016

The legislation governing the issue of Continuity of Residence in Permanent Residence applications is Regulation 3 of the EEA Regulations 2016. Under the Regulation 3 (2) the Continuity of Residence is not affected by the following:

(a) Periods of absence from the United Kingdom which do not exceed six months in total in any year;

(b) Periods of absence from the United Kingdom on compulsory military service; or

(c) one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

Upper Tribunal Judgement Continuity of Residence Babajanov [2013] UKUT 00513 (IAC)

The Upper Tribunal Judge Allen and Judge Dawson commented on the issue regarding the Continuity of Residence within the meaning of Regulation 3 of the EEA Regulations 2016. It was confirmed excess absences of over 6 months must come within Regulation 3 and the purpose needs to be of an importance comparable to those specified in regulation 3(2) and involve (i) compelling events and/or (ii) an activity linked to the exercise of Treaty Rights in the host country. It was also held that longer absences for an undefined period of compulsory military service are also deemed not to affect/break the Continuity of Residence. It was also established that one absence of a maximum of twelve consecutive months shall not affect Continuity of Residence for important reasons such as pregnancy and childbirth, serious medical illness, study or vocational training or posting in another member state country.

The Upper Tribunal judges also held that the right to Permanent Residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 is capable of being established whilst a national of a Member State or a family member of that national is outside the host country provided the reasons for the absence come within Article 16 (3) (and) regulation 3 (2). The reasons for these provisions are not exhaustive in the light of the reference to “such as” (reg 3 (2) (c), but the absence must be for an important reason.

The Upper Tribunal Decision can be found at Babajanov Continuity of Residence – Immigration (EEA Regulations 2006).

Using Legal Representation apply for a document certifying Permanent Residence in the United Kingdom

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct immigration and visa legal representatives to apply for Permanent Residence in the United Kingdom.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Permanent Residence application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules and EEA Regulations are complex and a legal representative can help ensure that your Permanent Residence application meets the Immigration Rules or EEA Regulations.

Successfully apply for a document certifying Permanent Residence

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your Permanent Residence application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your Permanent Residence application and ensure that you meet all the requirements of the relevant rules.

We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful Permanent Residence applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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