FREU wrote:Hello,
Spent hours on the net, the gov.uk, and on here trying to find an answer but unsuccessfully. Here is the case: my wife is EEA and was full-time PHD student during 2000-2004 (on UK research council grant so fully funded and with a stipend). At the time, there was no requirement to have CSI. Can this period count as qualifying as exercising treaty rights? (since the requiremnet for student to have CSI came afterwards in April 2006)? The question is related to knowing whether our first child, born after April 2006, is already British or not (based on my wife's circumstances on their own).
Many thanks
Yes it appears such a time may be used to acquire PR.
What was your wife doing in the year
before or the year
after her studies? (Was she in UK?).
- is it possible to identify a qualifying 5-year period (in UK)
together with adequate supporting documentary evidence?
If you have this it is possible that your wife, with admirable foresight,
automatically acquired PR at that time.
This may be of interest so quoting in full...
Periods prior to the Directive
The case of Lassal v Secretary of State for Work and Pensions Case C-162/09 established that periods of residence lawful under predecessor provisions to those now found in Article 7 of Directive 2004/38 could also count – ie, if someone was a worker/self-employed or retained those statuses, or was self-sufficient or a student or family member of any of those). Thus, someone who had already resided in the UK for five years as a worker prior to 30 April 2006 could acquire a permanent right of residence on that date as the Directive entered into force.
Lassal also considered what would happen if, having completed five years as a worker (or with a similar right) before the coming into force of the Directive, there was then a period of absence from the UK. Ms Lassal, who was French, had lived in the UK and had a right of residence as a worker from September 1999 to February 2005. However, in February 2005 she returned to France to visit her mother and remained there for 10 months. She returned to the UK and after a period on jobseeker’s allowance (JSA), she claimed income support in November 2006. The ECJ decided that such absences should be treated analogously with absences after the Directive came into force. It said:
‘absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).’
A different issue arose in SSWP v Dias Case C325/09. Ms Dias had also resided in the UK with a relevant right of residence for a five-year period before the coming into force of the Directive. However, she had then had a period, again before the Directive came into force, during which she had remained in the UK but had not been a worker, etc. or had another relevant right of residence. Had that period been after the Directive became binding, it would of course have had no effect on her permanent right of residence – those with a permanent right of residence are not required to meet any other conditions such as being a worker/selfsufficient, etc. Her difficulty was that during the period at issue she did not have a permanent right of residence (as that could only come into existence on or after 30 April 2006). The ECJ decided that her period of presence in the UK where she did not have a right of residence should be treated analogously with Ms Lassal’s period of absence. In other words, provided the period was less than two consecutive years, it would not prevent a permanent right of residence arising on the day the Directive entered into force on the basis of her earlier period of five years as a worker.
Ref:
http://www.cpag.org.uk/content/permanen ... ce-settled
