Igor Babajanov v The Secretary of State for the Home Department

A person may acquire a permanent right of residence under regulation 15 while temporarily outside the host state. The absence must nevertheless preserve continuity of residence under regulation 3(2) of the Immigration (European Economic Area) Regulations 2006.

The listed reasons in regulation 3(2)(c) are illustrative. An absence of up to 12 months must be for an important reason comparable to those listed. Its purpose must involve compelling circumstances and/or an activity connected with the exercise of Treaty rights and continued integration in the host state. Once permanent residence has been acquired, it is lost only after an absence exceeding two consecutive years.

The appellant, an Azerbaijani national, had lived in the United Kingdom with his mother and her Irish-national husband. In August 2008, while still a minor, he travelled with his mother to Ireland so that she could give birth. His mother returned to the United Kingdom in April 2009, but he remained in Ireland to complete a course of study and returned in June 2010.

The First-tier Tribunal dismissed his appeal against the refusal of a document certifying permanent residence. It held that his 22-month absence had broken the continuity of his residence. The Upper Tribunal found a material error of law, set aside that part of the decision, heard further evidence and remade the decision. The central issue was whether his absence prevented him acquiring, or retaining, permanent residence.

1. Appeal allowed. The First-tier Tribunal had erred by treating physical presence in the United Kingdom as equivalent to residence and by failing to consider whether residence could continue during an absence.
2. Under regulation 15 of the Immigration (European Economic Area) Regulations 2006, a right of permanent residence can be acquired while an EEA national or qualifying family member is outside the host state, provided that continuity is preserved by Article 16(3) of Directive 2004/38/EC and regulation 3(2).
3. The examples in regulation 3(2)(c) are not exhaustive because they are introduced by “such as”. But the absence must be for an important reason. Its purpose must be comparable in importance to pregnancy and childbirth, serious illness, study, vocational training or an overseas posting. It must involve compelling circumstances and/or an activity linked to the exercise of Treaty rights and continued integration in the host state.
4. The appellant was a minor when his mother took him to Ireland for childbirth. Her later return without him was not a decision that he should settle permanently in Ireland. Inadequate accommodation and the completion of his studies explained his continued absence. His parental responsibility had not transferred to another person. The absence therefore did not break continuity of his United Kingdom residence.
5. By 30 April 2009 the appellant had acquired permanent residence. His continuing absence until June 2010 did not exceed two consecutive years. Under Article 16(4) and regulation 15(2), he had not lost that right. The decision was set aside insofar as it concerned him and his appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): Found a material error of law in the First-tier Tribunal’s dismissal of the appellant’s appeal, set aside that decision insofar as it concerned him, remade it and allowed the appeal.
• First-tier Tribunal: Dismissed the appellant’s appeal against refusal of a document certifying permanent residence, holding that his absence in Ireland had broken continuity of residence.