UK Permanent Residence | EEA (DK) wife

[suparka]

Hi,

Just joined. Well done for creating this very useful forum!

I am concerned as my 5yr visa is expiring in Nov 08.

History:

I came to the UK nearly 10yrs ago. Came as a student, then applied for asylum due to troubles in ex YU, then got married in 2003 and received the 5yr visa. I studied UG, completed MSc and worked in the last 10yrs.

My wife applied for permanent residence in Mar 08. In July 08 Home Office sent a letter asking for 'Evidence to show that you had Private Medical insurance during the periods in which you claim you were self sufficient.'

As we were not aware of this requirement (assumed that NHS was not considered as Public Funds as such), we did not have the cover. She was advised to withdraw the application, or she'd be rejected if decided to continue?!?.


Current situation:

I need to apply for PR based on EC Treaty. Now, if my wife did not get it, what chance do I have.

This is what we've done in the last five years:
Yr 1 (Sep 03-Sep 04). Full Time job (became pregnant in May 04)
Yr 2 (Sep 04-Sep 05). Full time MSc course
Yr 3 (Sep 05-Sep 06). Continues MSc due to ext. circumstance + stay at home mum (since Jul 06)
Yr 4 (Sep 06-Sep 07). Actively looking for work, but no luck.
Sep (Sep 07-Sep 08 ). Working full time since Nov 07.

There is a period of about 15 months where we stated that she was self-sufficient, but did not have insurance.

To make it even more complicated, there was a period where I claimed HB under my name whilst working (for top-up). Simply not enough to survive. Did check with CAB office (but they couldn’t advise). I also mentioned the situation in the application form, but they agreed to provide us with partial benefits.

What is the worst case scenario?

If she was a stay at home mum, shouldn't this be considered as some kind of work?

Can I get PR? - I was working and paying taxes in the UK for a long time now.

Does HO checks whether people claimed benefits?

HO seems to look into these applications with black and white filter!!

Any help will be appreciated!

Regards.

[No Name]

Yr 1 (Sep 03-Sep 04). Full Time job (became pregnant in May 04)

I am assuming your wife was working from Sep 03 - Sep 04 - She was then covered by the NHS.

As she had been in the UK for more than 12 months in September 04, she would then at the least be covered by: National Health Service (Charges to Overseas Visitors) Regulations 1989 - 4 (b) which states:

“Overseas visitors exempt from charges

(b) who has resided in the United Kingdom for the period of not less than one year immediately preceding the time when the services are provided, whether or not immediately prior to the completion of one year's residence as aforesaid, charges under these Regulations may have been made in respect of services provided as part of the same course of treatment

You can find National Health Service (Charges to Overseas Visitors) Regulations 1989 here:

http://www.opsi.gov.uk/si/si1989/Uksi_19890306_en_1.htm

European law says that you have to have comprehensive sickness insurance when you are self sufficient, however the NHS provides comprehensive sickness insurance so if you are covered by the NHS you have in fact comprehensive sickness insurance, so the Home Office is incorrectly demanding private medical insurance.

You need to contact the European Commission for assistance. Please ask your wife to make a formal complaint to the European Commission about this matter, as I am sure they will be interested in this case.

You can find information about how to make a complaint on the following website: http://ec.europa.eu/youreurope/nav/en/c ... ex_en.html

Maybe it would be a good idea to first write to the Signpost Service and get free advice from their legal experts: http://ec.europa.eu/youreurope/nav/en/c ... ex_en.html so you could include this advice in your wife's complaint to the European Commission.

I hope you will inform this message board of your progress in the case. Best of luck!

[suparka]

Thanks for the reply.

I've seen similar comments in another post. It seems completely logical. (if A=B and B=C, than certanly B=C).

HO does not see it this way, unfortunately.

Yes, she was working from Sep 03 - Sep 04. She actually came to work here as au-pair in Aug 2002 (until Jul 03). She worked for a family loking after 2 children. She probably satisfies the PR since August 07.

We'll seek further help from EU Commission. We'll post further notes as the case progreses.

Shall I wait to submit my application before we complain about her case - in case HO decide to be more rigorous?

Thanks Again.

[No Name]

Shall I wait to submit my application before we complain about her case

I guess it might be wise to focus on the complaint first and make sure that your wife get confirmation of her permanent residency before you submit your application.

Best of luck!

[suparka]

I guess it might be wise to focus on the complaint first and make sure that your wife get confirmation of her permanent residency before you submit your application.

Agreed, but my visa is expiring soon and will need to get this going.

I have just posted an equiry to EU Signpost Service.

Cheers.

[suparka]

Hi,

Quick update:

We have contacted the EU Signpost Service. They suggest we complain to SOLVIT.

See extract below:

Reply
Directive 2004/38 provides for permanent residence of EU nationals in Member States other than their own. The Directive does not provide that the national must show evidence of private health insurance for periods of time where the applicant claimed that he or she was self sufficient. Such a requirement could be regarded as contrary to the spirit and purpose of the Directive which seeks to facilitate free movement in the EU. In any event, as you have already pointed out, your residence in the UK entitles you to treatment on the NHS without the requirement to obtain private insurance.

In relation to your husband, he should have a right to live with you and work in the UK based on his marriage to you. This was confirmed in a judgment of the European Court of Justice in a case called Metock which was delivered on 25th July last. Consequently, your husband should be granted a five year residence card in November pursuant to his application for same based on his marriage to you.

I recommend that you first appeal the refusal to grant a residence permit and seek written reasons for the refusal. You may then decide to refer the matter to SOLVIT which is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The website address upon which you will find further details of the SOLVIT service is www.ec.europa.eu/solvit/

It is also open to you to complain of the practice to the European Commission. A standard complaint form together with guidelines for completion are available on the following website: http://ec.europa.eu/community_law/your_ ... rms_en.htm

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The only confusing bit is that they suggested I should be granted 5 year residence card. Shouldn't it be a 10 year PR?

Regards.

[No Name]

I am glad to hear that you got confirmation from the European Commission Signpost service that:

The Directive does not provide that the national must show evidence of private health insurance for periods of time where the applicant claimed that he or she was self sufficient. Such a requirement could be regarded as contrary to the spirit and purpose of the Directive which seeks to facilitate free movement in the EU

The only confusing bit is that they suggested I should be granted 5 year residence card. Shouldn't it be a 10 year PR?

Do not worry about this. I am sure that they just misunderstood and thought that you had not been a resident of the UK for 5 years. If your wife has the right to permanent residency, then you will also have the right to permanent residency.

I would suggest that you contact SOLVIT for assistance + make a formal complaint to the European Commission.

Please keep this message board updated. Best of luck!