A2 national, PR and (not) exercising treaty rights

[zheni]

My sister is an A2 national. She registered as self-employed in 2007, then in 2008 she switched to being a student on a language course and got a student work permit/card. She was then de-registered for poor attendance. She then enrolled on another language course in mid 2009, finished that and got a work permit giving her unrestricted access to the labour market.
She is planning to apply for permanent residence in a few months but I am worried that her application may be refused for not exercising treaty rights for about 6-7 months.
Clearly by being de-registered she was not exercising treaty rights as a student on the language course but she was actually doing a professional qualification course in that time. This course was titled as part time and was 2 days per week, one day per week being practice in a hospital. The UKBA were unlikely to accept this course and issue student card, so she registered on language course to get the card and then apply for unrestricted access.
I assume the UKBA will refuse her application but The Immigration (EEA) Regulations 2006 do not mention anything about not exercising treaty rights for x amount of time.

Is there some sort of rule anywhere else than in the Regulations or have I missed it?

I was thinking to try to prove that she was still a student after being de-registered from the language course, as she was doing a professional qualification course. So, she was actually still a student and still exercising her treaty rights but the cover letter she received with her student card states that she must inform UKBA immediately if she changes courses, place of study etc. Now, the Regulations 2006 do not mention anything like this.

So, do you think she stopped exercising treaty rights?

[zheni]

Does anyone have a wild guess, as to when an A2 national may be treated to have stopped exercising treaty rights?

Any opinions/thoughts are appreciated.

[nonspecifics]

They do state that for PR a person must have been exercising Treaty Rights for five continuous years. However, case law also states that decisions to refusal residence documents must be proportionate.

Thus, they do not state x amount of time not exercising treaty rights means you fail to meet the criteria, as each case must be judged on it's individual merits.


If she studied even two days a week and also did a language course, then that's better than not offering any proof of exercising treaty rights during that period of time.

During the times she was a student, did she have comprehensive sickness insurance?

Read below, about CSI. What I wonder is that, will UKBA then accept your sister re-registered as a student so she does not require proof of CSI?

It seems she did reapply for a document confirming residence as a student, so that's in her favour.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

"EEA nationals who have already been issued with a registration
certificate on another basis (for example as a worker) and who then
became a student (but who did not reapply for a document confirming
this before 20th June) will not be treated under these transitional
arrangements. Such applicants must show evidence of comprehensive
sickness insurance for any time spent in the UK as a student. "

As she was registered as self-employed for some of the time, hopefully she can also provide evidence that she was genuinely earning money as self-employed. UKBA have demanded proof of accounts and National Insurance payments from others who have applied as self-employed.

Did she claim any benefits when she was not registered as a worker?

All your sister can do is try and present as much evidence as possible that she has exercised treaty rights for five continuous years and then hope for the best. If the application is rejected by UKBA , she could then appeal.

[zheni]

Thanks for the reply.

Just to answer your questions.

CSI-No, she did not have it, at the time it was not a requirement on the BR1 form. It also was before 20/6/2011 and she did have a student card, so she falls within the transitional requirement/period.

Benefit-No, she has never claimed anything.

As for self-employment, she has proof of that, its really a period of a few months that concerns me as UKBA were not informed.

[nonspecifics]

If UKBA tried she say she was not exercising treaty rights as a student or worker during those months after she was removed from her course, she could possibly argue she was exercising treaty rights as self-sufficient - if she can prove sufficient resources from any legal source, and accommodation, without relying on public funds, would prove that.

It's in her favour that she never claimed benefits and is probably exempt from the need for CSI; that makes it harder for UKBA to assert she was an unreasonable burden on the UK.

[zheni]

Claiming to be self-sufficient is not a good idea because then UKBA will refuse PR for not having CSI.

The exception for not having CSI is only applicable to A2 students that had student cards issued before 20/6/2011.

Course A-she was removed from (UKBA knew about this course)

Course B-she attended before and after removal from A (UKBA did not know about this course)

Course C- started straight after B (UKBA were informed about this course)

So, she was a student but UKBA did not about it, it can be proven that she was doing course B. I personally do not think it is a problem that UKBA were not informed about course B, the fact is she was exercising treaty rights.

[nonspecifics]

That's a good point.

She did register as a student before the transitional date so would be exempt if applying as a student.

It does not say it, but UKBA will probably argue the exemption from CSI only lasted for as long as she remained a student.

She was de-selected from her college course previously, but was her residence card/ work permit revoked by UKBA?

If it wasn't then, she's probably best to say she switched courses but continued to be a student / worker.


On this site it says part-time or full-time study:

http://www.ukcisa.org.uk/student/eea.php

However, it also says the teaching establishment must be on the Register of Education and Training Providers ( Register OF Sponsors since March 2009), but I don't know if that rule applied at the time your sister was studying.