EEA Leaves UK to later come back, non EEA wife stays to work

[AndreG]

This was the thread that I found to better fit my situation, so apologies if it turns out not to be.

I am a Portuguese man who is living in the UK since Sep. 2004 (I have studied and worked here) and my wife is an Iranian who is living in the UK since Aug. 2011 (also studied and worked).
My wife has a EEA family member visa issued in 2013 and valid until 2018. I applied at the time as self-sufficient so we need to obey treaty rights (comprehensive health insurance, money in bank at time of application, etc.). She currently works but will be made redundant at the end of May 2015 (I'm confident she'll find something though). This is also when our tenancy contract in London will end.
I have done a voluntary and a paid work, relevant to my qualifications, since graduating from a PhD in Jan. 2014. Due to problems related to the design of my project, my results had to be further validated and debated and only in March 2015 was I able to obtain my first publication. I have been unsuccessful in interviews due to lack of publications and experience. Now I have the required evidence of my competency and only 2 months to acquire work... I was also recently accepted for a research assistant position in Dubai (United Arab Emirates).
Money-wise, we are not fine and can probably reside in the UK until the end of May, if we can't find work. This is also the reason why I have not yet applied for british or dual citizenship for myself.

Here's my questions:
1. Can my wife stay and work in the UK while I'm working in Dubai? If I come to the UK every 3 months for 1 week, pay the London council tax and health insurance (for the two of us) could I be classified as "living in the UK"? Is "living in the UK" an essential requirement?
2. If I can briefly work outside the UK (2 years), can I then return, apply for citizenship and my wife apply for a permanent residence card? Would we have problems getting these applications approved because of my leaving?

Thank you.

Best Regards,
AndreG

[Casa]

The condition of your wife's spouse visa is that you, as her sponsor are exercising your Treaty rights in the UK. Working outside of the UK and paying overseas taxes with only brief visits every 3 months won't qualify. It's irrelevant whether your wide is employed or not.
Also, two further points:
1. PR (which I assume you have) will be lost is you are outside of the UK for a period of 2 years or more. Brief visits don't qualify as continued residence.
2. If you have been outside of the UK for more than 90 days in the 12 month period preceding an application for British Citizenship you will fail to qualify.

[AndreG]

Dear Sir/Madam,

I was wondering if you could help me.
I am a Portuguese national residing in the UK as a student between September 2004 until December 2013 and as a self-sufficient person/worker ever since. I have been self-sufficient throughout this time including the time I was looking for work, volunteering, briefly working as a writer and until September 2015 when I became employed full time.
On the 20/02/16, I had a confirmation letter regarding submission of carefully selected documents for a PR card application that included: Council tax/utility/rental/Private medical insurance bills, bank statements (both portuguese and english), Passports, payslips, funding body letters (scholarship), translations, and Universities letters (proving enrolment). Today, I received a refusal along with my documents.

Important details:
- I am married to a non-EEA citizen.
- my PhD project took place between 12/01/09 and 01/12/13 (dates recognised by the Home Office).
- My (and my partner's) comprehensive medical Insurance started on the 01/04/13 (also recognised by the Home Office).

The Home Office accepted that I was a student and employed in the posts and times stated. They also accepted that I had sufficient funds throughout all of my time in the UK.
However, they did not accept that I was

self-sufficient, as defined under the Regulations from 07 October 2004 and 31 March 2013

, and before the 01/04/13, because I did not have medical insurance.

Below is the regulation I am in breach of:
Regulation 4 of the Immigration (European Economic Area) Regulations 2006 ('the Regulations') stipulate the requirement for a self-sufficient person to;
(i) have sufficient resources so that they do not become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) has comprehensive sickness insurance cover in the United Kingdom.

So, they are unable to determine that I have been exercising Treaty rights in the United Kingdom for a continuous period of 5 years and have

decided to refuse the confirmation that you (I) seek with reference to Regulation 15 (1) (a) of the Immigration (EEA) Regulations 2006

.

I do not have a European Health card issued in Portugal since I left Portugal when I was 18 y.o. and did not work until then. This is because it is a requirement to pay taxes in Portugal before you can have such a card issued (what I was told in January 2013 when I requested, and was denied one).

Do I have any valid arguments for an appeal?
Does the fact that I have never used the NHS help?
Does the fact that I was a student before 01/04/13 help?
Were students, prior to 2013, really required to hold medical insurance for the purposes of a PR card/British citizenship?

Thank you in advance for any help you can provide.

[noajthan]

T...

Here's my questions:
1. Can my wife stay and work in the UK while I'm working in Dubai? If I come to the UK every 3 months for 1 week, pay the London council tax and health insurance (for the two of us) could I be classified as "living in the UK"? Is "living in the UK" an essential requirement?
2. If I can briefly work outside the UK (2 years), can I then return, apply for citizenship and my wife apply for a permanent residence card? Would we have problems getting these applications approved because of my leaving?

Thank you.

Best Regards,
AndreG

1) You will breach continuity of residence regulations if you are absent more than 6 months in any 12 month period (based on anniversary of coming to UK).

2) If you have already acquired PR your PR atatus will lapse after an absence from UK of 2 years or more.

If you have not yet acquired PR then an absence of 2 years will invalidate your wife's residence and working rights. (An exceptional, one-off absence of up to 12 months may be accepted).

A 2 year absence would also breach the different absence rules that apply when naturalising;
ie up to 450 days absence in 5 years including up to 90 days in the final 12 months before an application for privilege of citizenship is filed.

Both a citizenship application and wife's confirmation of PR would face problems in such a scenario,

[noajthan]

Dear Sir/Madam,

I was wondering if you could help me.
I am a Portuguese national residing in the UK as a student between September 2004 until December 2013 and as a self-sufficient person/worker ever since. I have been self-sufficient throughout this time including the time I was looking for work, volunteering, briefly working as a writer and until September 2015 when I became employed full time.

...

Today, I received a refusal along with my documents.

Important details:
- I am married to a non-EEA citizen.
- my PhD project took place between 12/01/09 and 01/12/13 (dates recognised by the Home Office).
- My (and my partner's) comprehensive medical Insurance started on the 01/04/13 (also recognised by the Home Office).

The Home Office accepted that I was a student and employed in the posts and times stated. They also accepted that I had sufficient funds throughout all of my time in the UK.
However, they did not accept that I was

self-sufficient, as defined under the Regulations from 07 October 2004 and 31 March 2013

, and before the 01/04/13, because I did not have medical insurance.

...

So, they are unable to determine that I have been exercising Treaty rights in the United Kingdom for a continuous period of 5 years and have

decided to refuse the confirmation that you (I) seek with reference to Regulation 15 (1) (a) of the Immigration (EEA) Regulations 2006

.

I do not have a European Health card issued in Portugal since I left Portugal when I was 18 y.o. and did not work until then. This is because it is a requirement to pay taxes in Portugal before you can have such a card issued (what I was told in January 2013 when I requested, and was denied one).

Do I have any valid arguments for an appeal?
Does the fact that I have never used the NHS help?
Does the fact that I was a student before 01/04/13 help?
Were students, prior to 2013, really required to hold medical insurance for the purposes of a PR card/British citizenship?

Thank you in advance for any help you can provide.

Most unfortunate.

1) Is it possible you can fall into the category of student qualified person from 2009 - 2013?
For this to fly you would again have needed CSI in place or foreign EHIC or a UK-issued RC, issued to you as a student.

Do you have such a RC? (issued in or before 2011 in order to invoke a certain transitional arrangement).

Alternately is it possible that parents had a Portugese health policy that covered you as a student in UK? That would be acceptable too.

If so, then there is a chance you had acquired PR in a continuous qualifying period from 2009 - 2014 or so.
The latter stage would be as a self-sufficient qualified person with, as you mentioned, CSI in place.

2) Use or non-use of NHS is immaterial.

3) Yes (possibly), see #1 & 4.

4) In a way, yes but not from before 2013.
There is a transitional arrangement for EEA nationals who were students and who held a RC issued to them as a student in/before 2011.
It exempts such students from having to have had CSI/EHIC whilst a student.

[AndreG]

Dear noajthan,

I have been looking through my documents and found that I have an NHS medical card issued to me by the Primary Care Trust as I started my PhD (the card is issued on the 12/02/09). Ironically, the card has this description: "...is proof that you are entitled to NHS treatment".

Actually this refusal came as a surprise exactly because I remember both Universities stating that as a student in the UK I was entitled to treatment in the NHS. This was why I never considered taking private medical insurance while I was a student. Never needed it anyways.

Can I appeal under the justification that:
1. I was mislead by both Universities on the importance of acquiring medical insurance and never using the NHS, and,
2. Treaty rights are an extremely important piece of information that should have been made aware to all students entering the country, and that both Universities and the Home Office have omitted.

Best regards

[noajthan]

Dear Casa,

I have been looking through my documents and found that I have an NHS medical card issued to me by the Primary Care Trust as I started my PhD (the card is issued on the 12/02/09). Ironically, the card has this description: "...is proof that you are entitled to NHS treatment".

Actually this refusal came as a surprise exactly because I remember both Universities stating that as a student in the UK I was entitled to treatment in the NHS. This was why I never considered taking private medical insurance while I was a student. Never needed it anyways.

Can I appeal under the justification that:
1. I was mislead by both Universities on the importance of acquiring medical insurance and never using the NHS, and,
2. Treaty rights are an extremely important piece of information that should have been made aware to all students entering the country, and that both Universities and the Home Office have omitted.

Best regards

Access to NHS is not the issue. You are entitled to use the NHS by being ordinarily/habitually resident in UK.
But NHS access & cover has been specifically not recognised (by UK case law) as serving as adequate CSI in the EU context.

1) Universities are not immigration advisors and individuals in university (tutors, professors, NUS officials, student counsellors and/or ??) may or may not have known about the specific requirement for students to have CSI.

2) Requirements are in public domain and well-publicised.

A UK doc:
Eg http://www.ukcisa.org.uk/Information--A ... -a-student

An EU doc, from 2013 - see page 16
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

I leave finding other archive web pages of historical information as an exercise for the reader.

[AndreG]

Dear noajthan,

reply to point 1
Universities in the UK have immigration advisors. I have used them in the past. Please see below:
http://www2.le.ac.uk/offices/welfare/about-us/staff
http://www.southampton.ac.uk/studentser ... index.page

reply to point 2
Maybe the information you referred regarding CSI is well publicised in 2016, as it should be. Prior to 2013, as a student, I never came across it. However, my point was that we should not have to search for it. It is important enough to be in a University booklet (or Home Office flyer) and the immigration advisors at the University should have known.

Do you think the appeal is not worth chasing?

Thank you for the help.
Best regards

[noajthan]

Dear noajthan,

reply to point 1
Universities in the UK have immigration advisors. I have used them in the past. Please see below:
http://www2.le.ac.uk/offices/welfare/about-us/staff
http://www.southampton.ac.uk/studentser ... index.page

reply to point 2
Maybe the information you referred regarding CSI is well publicised in 2016, as it should be. Prior to 2013, as a student, I never came across it. However, my point was that we should not have to search for it. It is important enough to be in a University booklet (or Home Office flyer) and the immigration advisors at the University should have known.

Do you think the appeal is not worth chasing?

Thank you for the help.
Best regards

You can try. You may need deep pockets.

I'm not sure you can argue its the universities' job to educate students on free movement (& requirements thereof).
Maybe its the EU's job. Or is it the student's job themselves?

The Immigration (European Economic Area) Regulations 2006 set out the rules and requirements for members of the European Economic Area (EEA) who are seeking to remain in the UK.

The Regulations have always required ‘self-sufficient’ EEA members and ‘student’ EEA members to have Comprehensive Sickness Insurance.

See this information (including a HO IDI on CSI) which was in the public domain as long ago as 2011:
https://www.whatdotheyknow.com/request/ ... es_and_csi

And here's an ILPA discussion document, also from 2011 (ie pre-Ahmad):
https://www.google.co.uk/url?sa=t&rct=j ... hDeuxTKoEA

Trawling the Gov UK web archives (which makes fascinating reading for a dull Saturday afternoon) turned up this example EEA4 application form from 2011 - note the references to CSI:
http://webarchive.nationalarchives.gov. ... /eea41.pdf

And one from 2012:
http://webarchive.nationalarchives.gov. ... /eea41.pdf


In the Ahmad case from 2013 the Court of Appeal dismissed an appeal by a student's spouse relating to access to NHS being a form of CSI. It ruled that an EEA national, when exercising a treaty right as a student, would only have lawful residence if they had comprehensive sickness insurance. This could not include the public healthcare system of the host state because that would defeat the object of the Directive, namely relieving the state of the cost of providing healthcare in the first five years of the EEA national's presence in that state.

The universities' interest will be in students who are authorised to study in UK, either on Tier 4 or EU route, as they have a vested interest in preserving their sponsor status and not being penalised by HO.

The London Met example is a case in point: http://www.bbc.co.uk/news/uk-19425955

Universities may not be so interested in whether a student will, in due course, qualify to acquire PR (which is really only of interest to the student).

Its unfortunate if pastoral care did not cover this point, but students are intelligent, free agents and could be expected to inform themselves of necessary steps to take when migrating; (eg including medical precautions, vaccinations, procuring an EHIC etc).

[secret.simon]

students are intelligent, free agents and could be expected to inform themselves of necessary steps to take when migrating (eg including medical precautions, vaccinations, procuring an EHIC etc).

+1

And certainly a PhD student could be expected to be more than capable of a significant amount of independent research in any field, not necessarily his niche.

[noajthan]

Back to previous suggestions, your only hope of utilising the student period before 2013 (2009 - 2013) now depends on...

1) Whether you have had a UK-issued RC for a student (issued in or before 2011) in order to invoke a certain transitional arrangement.
If so, this would exempt you from showing you had any CSI in place.

2) Alternately, is it possible that parents had a Portugese health policy that covered you as a student in UK
That would be acceptable as a form of CSI too.