I post same question to Europe Advice enquiry and this is the response I received. I hope this will help others who are looking for answer.
Reply from Europe Advice enquiry:
Dear Sir/Madam,
Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.
Thank you for contacting Your Europe Advice.
In order to have a right to stay in the UK beyond three months as the family member of an EU citizen, the family member must be able to demonstrate that their EU relative has a right to reside.
An EU citizen will have a right to reside under Article 7(1) of Directive 2004/38 provided that either (1) they are working there, or (2) they are working as a self-employed person, or (3) they are studying there, or (4) they are not working but they have adequate financial resources to support themselves and their family members while living in the UK so that none of them become an unreasonable burden on the social assistance system of the UK and they all have comprehensive sickness insurance in place.
The rules relating to the proof of sufficient resources are contained in Directive 2004/38 on residence rights as supplemented by the case law of the EU Court of Justice.
Directive 2004/38 does not specify the amount of resources an EEA national needs to have.
The Directive states that a person will be considered as having sufficient resources if he has an income above the level below which nationals become eligible for social assistance (Article 8(4) of Directive 2004/38 applies).
This means that, under Article 8(4) of Directive 2004/38, the UK authorities cannot require the EEA national to prove that he has resources of a specific amount. Instead, the EEA national should ensure that he can show that his financial resources are above the amount below which nationals can apply for social assistance. In the UK, we understand that this would correspond to the weekly amount of Income Support or Employment and Support Allowance of £ 73.10 per week for a single person and £ 114.85 per week for a couple (aged 25 or above).
This means a couple who demonstrate that they have resources of over £ 114.85 per week (£ 497.68 per month) must be considered as having sufficient resources.
The rate of reference changes every tax year:
https://www.rightsnet.org.uk/resources/ ... edit-rates
The concept of sufficient resources has been examined by the EU Court of Justice.
In Case C-310/08 Ibrahim, the Court confirmed that, whatever their nationality, the family members of a Union
citizen who is residing in another Member State without being a worker or self-employed person there have the right to
accompany or join that EU citizen, provided that the citizen has sufficient resources for himself and the family members and has comprehensive sickness insurance cover in the host Member State (confirmed by the Court in Case C-218/14 Kuldip Singh).
In Case C-200/02 Zhu and Chen, the Court of Justice confirmed that that the origin of a person s resources is immaterial (confirmed by the Court in Case C-86/12 Alokpa and Moudoulou and Case C-218/14 Kuldip Singh).
In Case C-408/03 Commission v Belgium, the Court of Justice ruled there is no need to establish that there is a formal legal obligation on the family member to provide for the EU citizen who is relying upon that support for their material needs.
In Case C-398/06 Commission v Netherlands, the Court of Justice held that Member States cannot require economically inactive persons to have to prove they have resources that are sufficient to sustain them for at least a year regardless of the period of their intended stay when they begin to reside, because this went beyond the objective of requiring that a person demonstrate they are self-sufficient.
In Case C-218/14 Kuldip Singh, the Court of Justice explicitly confirmed that an EU citizen may rely on the resources obtained by their non-EU spouse from their employed or self-employed activity in the host Member State in order to demonstrate that they have sufficient resources as required by Article 7(1)(b) of Directive 2004/38.
Based on the above, we can confirm that an EEA national is able to claim a right of residence in the UK as self-sufficient based on the income of their non-EEA family member residing in the UK.
However, in addition, if the EEA national does not work, they will need to have comprehensive sickness insurance for themselves and all their family members, even if the EEA national s spouse works). Note that the UK does not recognize NHS cover as being sufficient for this purpose. Therefore, in order to ensure that the non-EEA spouse retains a right of residence in the UK and the right to work there, their EEA spouse will need to arrange private health insurance for themselves and all their family members if the EEA national does not work.
We recommend the EEA national looks into obtaining private healthcare cover at affordable rates. We are aware from research on internet discussion boards that healthcare insurance can be obtained for relatively modest sums, such as:
WPA
http://www.wpa.org.uk, General & Medical
https://www.generalandmedical.com/, Aviva
http://www.aviva.co.uk/private-health-insurance/, BUPA
http://www.bupa.co.uk/, AXA PPP
https://www.axappphealthcare.co.uk/, CS Healthcare
http://www.cshealthcare.co.uk/, Vitality Health
http://www.pruhealth.co.uk/, Exeter Family Friendly
https://www.exeterfamily.co.uk and Freedom Health Insurance
https://www.freedomhealthinsurance.co.uk/
We hope this answers your query.
We remain at your disposal, should you require further information.
To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.
Your original enquiry was:
Can a EEA national exercise a Treaty right as self-sufficient based on the income of their non-EEA family member residing in host member state and holding EEA residence card?
Yours sincerely,
Your Europe Advice
