ILR for EU wife of UK citizen. What am I doing wrong?

[Plantpot]

I'm a native-born UK subject married to a Czech citizen (since 2006) and she has been living in the UK since 2003. We have a daughter who is a UK subject. My wife worked here for the first 3 years, so has a national insurance number and was registered under the workers' registration scheme (now finished), then left work to look after our child and registered for home responsibilities protection. She is the carer of a child with British nationality, if that makes a difference. Although she is from a European Economic Area state and entitled to be here, as she finished her registration in Prague, she wanted to have ILR here to make her residence official and also to protect her pension (or spouses right to my pension if I go first). Also, when the UK leaves the EU in a few years' time, it would be a protective measure for her to have permanent residency.

We claim no benefits at all apart from child tax credit because I work and she is therefore not entitled to anything. We applied for ILR on the EEA3 form in the self-sufficiency section and were refused because (a) I don't give her 18,600 a year (does anyone?) and (b) she is not a member of a private healthcare scheme (which wasn't needed when she started living here). I did not fill out the 'related to a person with ILR from the EEA' section because I probably misunderstood it - this section appeared to apply only to people from other countries who had been granted permission to stay in the UK. I hadn't applied or been granted permission because I was born with the right to live in my place or origin.

Questions: (1) If she re-applies in the 'related to an EEA national with ILR' section, would this be correct or does it not apply to us? (2) In this section, is it still necessary to have private medical insurance? (3) Am I filling out the wrong form entirely? I just can't see why a wife of a UK passport holder and mother and main carer of a UK passport holder, who is from the EEA with treaty rights, who doesn't claim benefits and who's lived here without a break for years is not qualified for leave to remain. Can anyone explain what we should do next? You could really help us. Thank you.

[yoshi_jp]

First of all, your wife is an EEA national and can stay here as she pleases. That's why she is not normally qualified for "leave". The UK government cannot arbitrarily give or take away her right to reside here.

That means, she has two options. One is to reside here as your spouse entirely based on the UK domestic immigration rules. But, I reckon she didn't get a visa / entry clearance as a spouse of a British national when you two got married, so she has to disregard her time of residence here up till now if she takes this route. A very small number of EU nationals used this approach in the past, because it would take only two years (instead of five using EEA3) to obtain a settled status. Now, the same route takes 5 years and it's expensive plus you need to clear the income threshold, so it makes no sense to go back to square one and start again in this way.

More reasonable option is to use the EEA route i.e. relying on the right of free movement and living here for 5 years exercising her treaty rights to obtain her Permanent Residence status.. She correctly used form EEA3 for this purpose, but as a self-sufficient person she had to buy a health insurance policy. The Home Office started enforcing this policy fairly recently, but it was always there in the Directive. If she had and still has a valid EHIC from CZ, then that is sufficient. Otherwise, I'm sorry to say that she hasn't lived in the UK as a qualified person.

Claiming benefit or not is totally immaterial, and so is the fact that you are British. On the contrary, an EU national on JSA is more qualified ("Job-seeker") than an unemployed and uninsured millionaire. I know it's ridiculous, but welcome to the Kafkaesque nightmare of UK immigration.

"Article 7
Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State;
or
(b) have sufficient resources for themselves and their family members not to become a burden on the social
assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (snip)"

I hope this helps.

[Plantpot]

Thank you for relieving some of the confusion. It still looks as if they've deliberately made it as difficult as possible for married people to live together. As Franz Kafka was also from Prague, I guess we had this nightmare coming.