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Babajanov (Continuity of residence – Immigration (EEA) Regulations 2006) [2013] UKUT 513 (IAC)

Babajanov (Continuity of residence – Immigration (EEA) Regulations 2006) [2013] UKUT 513 (IAC)

(1) The right of 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.

(2) Leaving aside military service, the reasons for that absence must come within regulation 3(2) (which corresponds with provisions 16(3) of Directive 2004/38/EC). The specific reasons set out in regulation 3(2)(c) are not exhaustive, given the phrase “such as”, which precedes them; but the absence must be for “an important reason”.

(3) Accordingly, in determining whether a period of absence falls within regulation 3(2)(c), regard must be had to the purpose giving rise to that absence. The purpose needs to be of an importance comparable to those specified in regulation 3(2)(c) and involve (i) compelling events and/or (ii) an activity linked to the exercise of Treaty rights in the host country.

In this case the successful appellant had arrived in the UK in 2004 aged 12. Between 2008 and 2010, while still a minor, he resided outside the UK for a period of 22 months, in Ireland as it happened. He applied for permanent residence in 2010 on the expiry of his residence card. The tribunal held that, looking at his degree of integration in the UK and the reasons for the move, which were beyond his control, he had acquired the right of permanent residence notwithstanding a gap in physical presence outside the UK.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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