"Exercising Treaty Rights .." help from experts ne

[abulotus]

Hi folks..


I really find this forum very helpful and wonder if I can get some advice from experts around ..

My story in short: I am non-EU holding RC since Aug 2007 and apparently my wife is EU (Spanish) with a registration certificate. I am not sure how she is considered by HO as exercising her treaty rights because when we submitted our EEA1 & EEA2 we included documents claiming she is self-sufficient plus a letter from college where she was following an ESOL course. Any way, applications were approved and my RC was issued.

Now .. I have heard rumors that applying under EU law is getting tougher especially for EEA3 and EEA4. My wife has not worked or registered as jobseeker in this country. She has got enough funds as I am working with good salary that can secure good living for both of us. Unfortunately we have claimed "as a couple" and granted CTC + CB (which was a mistake I believe because the EU national in our case, my wife, is exercising her rights as self-sufficient or student, no big difference in terms of access to public funds).

Any way we are getting prepared for next step which is EEA3 & EEA4 (probably bit early but we are not ready for any last minute surprises), and just wanted some advice regarding my wife's treaty rights.

1- Shall we ignore the fact we are receiving these benefits and apply for EEA3+4 assuming she has been self-sufficient (proof as bank statements ..etc available, plus I bought a private health insurace for her recently as backup after reading some threads in this forum)

2 - Would it be better for her to set up from-home buisness (say eBay store for example) and register as self-employment with HMRC? This option may be costy but can make life much easier in terms of benefits and applications later.

To be honest I'm bit concerned about the benefits we are receiving and think to write to HMRC to stop claiming CTC. (If my wife was working and paying taxes this should not be a problem at all).

I really appreciate any advice whether to go for option 1 or 2.


Thanks

[vinny]

See also Qualified person and Detailed Public Funds guidance.

[abulotus]

Thanks Vinny.

I am familiar how an EU national can qualify for legal residency in the UK. My concern was about receiving benefits. Because my wife qualified as either student or self-sufficient she has no access to UK benefits system (or at least as I can gather according to the caseworker instructions for PR). In the Detailed public funds guidance it says "Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control (myself in our case) then for tax credits purposes neither are treated as being subject to immigration control." (We did claimed as couple) AND "If a person is subject to immigration control and lives with a family member who is a British citizen or a national of a country in the European economic area (EEA) they can claim certain public funds if they have a right to reside in the UK".

Do you think we made a mistake by claiming CB + CTC given that my EU wife qualifies as Student/Self-sufficient and I am (non-EU) in full time employment?
Do I have to stop receiving these benefits or/and pay the money back to HMRC?
If my wife sets up her own business (self-employment) would it be easier when applying for PR in future?

[86ti]

Have a look into the ECIS, chapter 12. The key phrase is 'unreasonable burden to the state'. It is unclear how that should be interpreted. In principle, assessment should be done on an individual basis in any case. I honestly don't know what viewpoint HO would take on at the moment. You are probably aware of the comprehensive sickness insurance troubles despite non-EEAs (fully) contributing to national insurance and paying taxes. I wonder if HO would extend this line of thinking to benefits too.

[betula]

hello...
I've just found this forum and decide to write my comments to you as I'm in same situation.
Firstly want to ask you, are you subject to immigration control? Do you have in your resident written no recourse to public funds?
I think that a non-eea family member is not subject to immigration control.

Section 115 of the Immigration and Asylum Act 1999, sub-section (9).
A person subject to immigration control is defined by section 115(9) of the Immigration and Asylum Act 1999. A person subject to immigration control is defined as:

A person who requires leave to enter or remain in the UK but does not have it. (This covers overstayers, illegal entrants, people who are subject to a deportation order, those allowed temporary admission to the UK and anyone whose immigration status has yet to be determined).
A person who has leave to enter or remain but subject to the condition that he does not have recourse to public funds. Limited leave to enter or remain subject to there being no recourse to public funds is given under section 33(1) of the Immigration Act 1971.
A person who has leave to enter or remain which is given as a result of a maintenance undertaking. (They are sometimes known as ‘sponsored immigrants’). A ‘maintenance undertaking’ is defined by section 115(10) of the Immigration and Asylum Act 1999 as a written undertaking given by another person in pursuance of the Immigration Rules to be responsible for the maintenance and accommodation of the person in question
A person who has leave to enter or remain only because he is appealing against certain immigration decisions. Under section 61 of the Immigration Act 1999, a person with limited leave has a right of appeal against a decision to vary, or refuse to vary his leave. A similar right is given to asylum seekers by section 69 of this Act. While any appeal is pending, the leave to which the appeal relates and any conditions subject to which it is granted continue to have effect.

I've spoken to home office a few times recently as eea national and my husband is non-eea family member, he works i dont. We have 2 children and claiming CTC and CB.
The biggest problem was my unemployment and I've been told that i need private health insurance (comprehensive) as I have no right to free NHS. I asked what about my children - they dont need because my husband works.
So i have insurance now ( just in case for whole family). But still lots of stress as we will be applying for PR in 5 months time. Dont know what about benefits-i guess it might be a problem but from other side if i dont need to apply for PR i have right to live in UK and right to NHS and benefits! What isnt right...
Hope somebody have same situation...

[abulotus]

Well done to get a comprehensive sick insurance for all your family members even your non-eea spouse works and pays taxes. I think this is safer, at least this is what I did recently.

Keep us informed of your progress after you applied for PR.


Thanks