Immigration history of my wife:
My non-EEA wife have entered the UK on 06.05.1997 as a child on a diplomatic visa. The visa expired in 2003.
From 2003 to 2011 she did not have a valid legal status to be in the UK and overstayed her visa.
I am a Hungarian EEA citizen and have entered into a relationship with her in the year 2005 and have had our first child in 2008.
On the 14.04.2011 she was granted Limited leave to remain on compassionate grounds for three years until 14.04.2014.
In 2014 before her visa would have expired we applied and was granted a Residence Card of a Family Member of an EEA National which is now due to expire on 17.03.2019.
Work history of my wife:
She has been working and employed by the same company since the year 2000 and was paying National Insurance Contributions and Income tax on her earnings which is above £18600/annum.
My own immigration history:
I entered the UK on the 05.09.2005 as a Hungarian Citizen (EU member state). I met my wife in 2005 and married her in November 2010.
I applied for and was granted permanent residence on the 15.12.2011. Then applied, and granted British Citizenship on the 24.04.2012. Since then I have been a dual national.
My own work history:
Having been working in a full time employment from July 2005 to November 2017 I was exercising my treaty rights as an EU citizen.
In 2017 I have left my employment to look after our children a 10 years old girl and an 8 years old boy. Since then we only had my wife’s income and our savings to support us but we have at no point relied on benefits or accessed public funds in any shape or form.
Questions:
Since she have been on the Residence Card of a Family Member of an EEA National during the past five years we would like to apply for Permanent Residence for her as we intended to continue to live together in the UK with our children.
As we understand one of the criteria to apply for PR for her under EU law is that I have to prove that I have been continually exercising my treaty rights in other words I have been a “qualified person” during the past five years.
As per the regulations I can prove being “qualified” on the following grounds: job seeker, worker, self-employed person, self-sufficient person, student.
In my particular case I can prove being qualified and that I was exercising my treaty rights as a worker in a full time employment from 2005 to 2017. However I would have to prove that I was “self-sufficient from 2017 to 2019 (up to now) to cover the five year period as required.
This is the point where I am uncertain if we would be eligible to apply.
This document (link included below) states the following:
The document also states the following:A self-sufficient person is an EEA national who is exercising their free movement rights in the UK. They must be able to provide proof that they have:
• enough money to cover their own and any family member’s living expenses without
becoming a burden on the social assistance system in the UK
• comprehensive sickness insurance (CSI) in the UK for themselves and any family members
They could also qualify as self-sufficient based on the income of their family member if this money is available to them. For example, their non-EEA spouse may have permission to work in the UK under the Immigration Rules and be providing financial support to the EEA national from their income alone. This would be considered acceptable for the purposes of the Immigration (EEA) Regulations 2006, as long as the EEA national also has CSI cover for themselves and any family members.
https://assets.publishing.service.gov.u ... 6.0ext.pdf
but in the same section we can read this note:Family members of British citizens under regulation 9 must have CSI if the British citizen intends to be economically inactive in the UK on their return. As British citizen’s have free access to the NHS they would not be required to hold CSI.
We also noted the following information from this document:If the following persons do not provide evidence of CSI you must refuse the application:
• a self sufficient person or any of their family members
• a student or any of their family members
• family members dependent on a child under regulation 16(2) (Chen)
• family members of British citizens where the British citizen is economically inactive
http://www.airecentre.org/data/files/re ... encies.pdf
So based on the above background information, here are my questions:The UK Court of Appeal has held that reliance on NHS coverage is insufficient to meet the
requirement for CSI (Ahmad v Secretary of State for the Home Department [2014] EWCA
Civ 988; see also FK (Kenya) v Secretary of State for the Home Department [2010] EWCA
1) Do I meet the requirements to be viewed as a “qualified person” on the merits of self-sufficiency from the year of 2017 to 2019 (now) despite not having comprehensive sickness insurance (CSI) cover on the grounds of being a British National and therefore having free access to the NHS?
2) Would the Home Office consider accepting our application for Permanent Residence (PR) despite of my wife not having CSI cover, but instead paying income tax and National Insurance contributions from her wage in the past 19 years?
3) If we decide to apply for PR and our application is refused on the grounds of not having CSI cover would I be able to argue my case in court in front of a judge based on having paid NI from 2005 to 2017 and my wife having paid NI contributions since she was economically active in the UK since the year 2000?
4) Would it be possible to obtain CSI cover for her before we submit our application for PR to meet the requirements although not being able to provide evidence of having CIS cover for the years of 2017 to 2019?
5) Given that I was economically active and had worked from 2007 to 2012 therefore, was considered as a “qualified person”. Would it be possible to apply for PR for my wife based on that period?
6) Can ILR application submitted as a spouse of a British Citizen if the previous five year stay in the UK was on a visa of an EEA family member?
7) Can two application be submitted at the same time to the home office one applying for permanent residency and a second application applying for indefinite leave to remain? Would the two have a negative effect each other?
8.) In the light of the above circumstances, is it considered viable applying for PR and if not what other solutions would be available to us to carry on our life in the UK?
I would like to thank in advance for everybody who takes their time to answer my post and questions, and I would like you to know that your help and advice is greatly appreciated.
I tried to cover every information I felt was relevant to the case, if however further information is needed in order to be able to answer, please do not hesitate to ask.
Have a great day everyone!
