ILR EEA3 Application Refusal for EEA Worker Family Member

[bonio_j]

First of all apologies for cross post, I have already submitted the post on the topic on the BC forum
http://www.immigrationboards.com/viewto ... 2&t=142655
however this was follow up the to the earlier discussion so I'm submitting another (slightly edited) post here,
since this forum is suited better.


I'm EEA worker who has been working continuously (continuous employment) in UK for 7 years and I acquired
my citizenship couple of months ago (w/o any problems) once my documents were returned we had submitted
application for my wife's ILR confirmation. Please note we initially planned to submit joint citizenship
application however my wife has never worked in UK (7 years) due to family circumstances, reading the forums
couple of months ago we had been advised to sort out her ILR first as her unemployment status was predicted
as a possible source of issues.

My wife was a main applicant on EEA3 ILR confirmation application and I had been added as a person exercising
Treaty Rights and as such my wife was described as a "family member of such person". In fact on the
cover letter we had put following statement (see UPPER CASE wording):

"I would like to apply for confirmation of my permanent residence under 2006 Regulation Act.
I'm a EEA / Polish national, and I have been living continuously in United Kingdom for more than
7 years since September 2nd 2006.

Please note that I HAVE NOT EXERCISED the TREATY RIGHTS DIRECTLY (as I have never worked after my
arrival in United Kingdom staying at home as a housewife) however I'M APPLYING AS A FAMILY MEMBER
of such person, who is my husband Mr. xxxxxx. In accordance to official “EEA Guidance Notes”
this should suffice for a permanent residence eligibility, related document content is shown /
highlighted below:"

Relevant quote followed:

" EU laws relating to free movement rights that were in force during the
five-year period – that is, you will need to have been living in the United Kingdom as a worker/
jobseeker, in self-employment, studying or self-sufficient throughout the five-year period
or to have been a family member of such a person or a person with permanent residence. "

Based on:
http://www.ukba.homeoffice.gov.uk/sitec ... de-eea.pdf

Therefore application was surrounded with set of document proving that I have exercised the Treaty Rights
and that main applicant is my wife and had been resided in UK for required number of years.

Now excerpts from the refusal letter, note this is addressed to my wife and not to myself:

1)
"You have stated in your application that you have EXERCISED TREATY RIGHTS in the UK for a
continuous five year period as a self sufficient-person, wholly reliant on your EEA national spouses
earnings from employment" ...

2)
"... Your application has been considered and the following has been ascertained from the evidence
provided: You have not provided evidence that you hold comprehensive sickness insurance in the UK.

You have failed to provide evidence that you are a qualified person."


So to summarise case worker accepted proof of evidence on my wife's residency however they treated her as
a main person who should have exercised treaty rights and not family member of such person. I'm of course familiar with
CSI requirement for self sufficient EU members however we did not state that my wife is self sufficient EU citizen.
I thought that family member of working person who fully exercise treaty rights would be fully covered
by national insurance system such as any other family member of any other worker in UK. So to speak, the quoted
sentence from above on the family member of the UE worker gives impression that being such family member should be enough to gain ILR.
Please note I have never reside in UK as a so called self sufficient person (I work and have been working since
day second ;D of my arrival) what state would likely require to purchase comprehensive sickness cover for myself,
wife and our children in home office terms with regards to ILR requirements.

On that basis I think i'm going to appeal, the ultimate aim is to have my wife applied for British naturalisation as well,
however it might be not possible without her having permanent residence in the first place.

If you have any comments on the case which would help during appeal process or else
if you think that our case is lost pls. follow up any help will be appreciated.

Regards,

[Jambo]

The caseworker was wrong in refusing the application.

Follow this thread to read about reconsideration. It would be the quickest and cheapest way to sort it out.

[bonio_j]

That's what I actually did, letter was posted on Thursday, although I sent it back to relevant emigration centre
with just department name on it and w/o case worker name, so this may delay things a little bit.

I'm astonished, though, especially reading other posts, by a lack of knowledge on basic immigration rules among the
HO specialists, considering our (my wife's & my) situation this was the simplest case they could take on, I think.

I sent a long letter to them complaining on the aforementioned lack of expertise (or else common knowledge) with regards
to the rules. I also quoted several EU and Uk directives related to the case, I put them below so hopefully they might
be reused by someone else if needs be.

We will see what happen next.

Regards,

6)
I believe this is unlawful decision for the reasons outlined below, relevant directives are shown in section 7 and referenced in brackets.

- I have not applied as a person exercising treaty rights, my application clearly states that I was applying as a family member of such person either through cover letter or form EE3 where relevant form section were used for myself (as a family member) and my husband (see 3) (who was acting as a person exercising Treaty rights),
- I have been lawfully residing in the United Kingdom as family member of a EEA worker
since my arrival in September 2006 (see below 7.C.1.a and 7.C.1.d and 7.E.31),
- I have full rights for Permanent Residency status and I already gained it via my husband’s rights in October 2011, therefore I can’t be refused such residency status. (see 7.A and 7.B) and (7.D.15.d),
- my husband proved that he had been EEA worker throughout the relevant period of time
and according to directive only non workers, or else, self sufficient person and their
families are required to hold comprehensive sickness insurance and ONLY for the period of time where they were, or claim to be, self sufficient (see 7.C.1.b and 7.E.31),
- none of other required factors apart of lack of insurance were questioned on the refused application, again comprehensive insurance requirement should not have applied for my case (7.E.31).

7)
Relevant European and the United Kingdom’s regulations are quoted below:

7.A) Under Article 16 of EU Directive 2004/38 (‘the Directive’), EEA nationals automatically acquire a right of permanent residence in the UK if they have legally resided here for a continuous period of five years.

7.B) Under Article 17 section 3 of ‘the Directive’, Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.

7.C) furthermore, according to ‘the Directive’ Article 7: 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence andhave comprehensive sickness insurance cover in the host Member State; or (c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; … (irrelevant parts are omitted) … period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

7.D) also according to The Immigration (European Economic Area) Regulations 2006 (‘Regulation)
section 15: The following persons shall acquire the right to reside in the United Kingdom permanently, (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; … (d) the family member of a worker or self-employed person who has ceased activity;

7.E) in addition after:
https://www.gov.uk/government/publicati ... egulations

Appendix 6 - UK permanent residence entitlement, Chapter: Family members of those exercising Treaty rights. Section 31. The family members of those EEA/Swiss nationals exercising Treaty rights can also live lawfully in the UK with the person exercising the Treaty right, regardless of whether they themselves (i.e. the dependent family members) are exercising a Treaty right. This includes dependent parents. However, if the EEA/Swiss national sponsor is exercising a Treaty right as an economically self-sufficient person or student they and their dependent family members must
have sufficient resources of their own so that they are not a burden on the UK’s social
assistance system. The family member of a self-sufficient person must also have CSI (although those of students currently do not).

[sanami]

Dear Bonio,
Sorry did not realise this thread and posted in the previous.

I am waiting for any decision that you will get back from HO.
I recently wanted to apply for British citizenship on the basis of exercising treaty rights...likely I talked to a solicitor at CAB first.

I am EEA national, came here in 2006, registered with WRS straight away, worked full time till 2008, 2008-2011 was studying (no work whatsoever), started to work again in 2011. I was told that because i did not work at all during 2008-2011 I would have needed to provide comprehensive health insurance for that period...obviously had none, as I thought my entitlement to nhs was enough...

However, I got married in 2007 (my husband was non-eea) and my husband got British passport in 2009. The solicitor told me that in that case I can apply in 2014 ( in few months time) on the basis of being married to him. As an eea I will acquire permanent residency in 5 years from being married to him, and he said not having insurance will not make any difference to that application. However I am still scared searching everywhere to confirm that I do not need to get the documents about the health insurance, my husband has been in full time work all this time.

You did not need official PR yourself, could have just applied for British naturalisation ( can do that after 6 years of exercising treaty rights) same as your wife on the basis of being married to you.
I am sure her application will be accepted eventually, as by all the laws she applied as your family memebers and not exercising treaty rights.

[Jambo]

my husband got British passport in 2009. The solicitor told me that in that case I can apply in 2014 ( in few months time) on the basis of being married to him. As an eea I will acquire permanent residency in 5 years from being married to him, and he said not having insurance will not make any difference to that application. However I am still scared searching everywhere to confirm that I do not need to get the documents about the health insurance, my husband has been in full time work all this time.

Did you pay for this advice? The solicitor was wrong.

You can't rely on your (now) British husband activities. He is not considered a EEA national. Concentrate on sorting your status and evidence to show you have obtained PR. As a spouse of BC you can apply any time after PR status was (automatically) obtained.

[bonio_j]

Sanami,

I have not heard anything back from HO as yet, its been a week since I posted the letter to them, so
likely I will need to open an appeal case, it looks like they simply ignored my request for reconsideration
of our case. Please note my wife's case is different from yours as I had been exercising treaty right for
required period of time as an EU worker.

With regards to your question, I would agree with Jambo, you need to sort out your permanent residency status
(this is very important) before you can apply for a citizenship, apart of that you are certainly entitled to
naturalisation as a partner of a Briton, assuming you have been RESIDED for at least 3 years before
application is submitted.

I think at this point you need to reconsider what would be your chosen path for permanent residency application, from HO
point of view under EU law, this is how your status looks, please note I'm not an expert, so double check on this.

EU route:
Under EU regulations you need to be lawfully for 5 years in UK before you can gain PR status, so:
- your are OK in 2008 as an EU worker
- student 2008 - 2011: can't be counted b/s according to regulation:
"student” means a person who—
(i) is enrolled at a private or public establishment, included on the Department for Education and Skills’ Register of Education and Training Providers(b) or financed from public funds, for the principal purpose of following a course of study, including vocational training;
(ii) has comprehensive sickness insurance cover in the United Kingdom; and
(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence.
- EU worker (starting from 2011, you are again OK, your 5 years period likely restarts in 2011, though).

It means that you would gain PR status in 2016, assuming that you will be working continuously, if you would loose your job
you would need comprehensive insurance for those periods + you will need to prove that you are financially covered as well
at those times. In extremal cases some benefits (for unemployed) if taken can break the case of your financial independency
(for example income support, income-based jobseeker’s allowance, employment support allowance (income-related),
housing benefit, council tax benefit, or state pension credit), note, this is checked on individual cases.

OTHER ROUTE (if possible) and can be backdated:
Above, of course, is related for an application made under EU rules. I'm pretty sure one can be treated independently as a partner of
a British citizen w/o all of these EU related mess, however there will be a special route for such person (which details I'm not aware of)
and the case would need to be trigged in, officially, by your partner.
Can this be done & most importantly backdated, I don't know, again, your time is counted if you lawfully resides in the country,
so there might be the case that if you take non EU route, your time would start ticking from the day application is made,
you would again need 5 years to gain PR, so its not a valid option in my opinion.

I know, the regulations sucks, it seems that as an EU partner of a Briton it might be even harder (comparing to non EU person)
to fulfill all of the requirements.

[Jambo]

you are certainly entitled to
naturalisation as a partner of a Briton, assuming you have been married for at least 3 years before application is submitted.

There is no requirement to be married for 3 years.

You need to be (1) married to a BC and (2) resident in the UK for 3 years. You can be a resident for 3 years, get married and apply the next day after your wedding. You also of course need PR (which is your main problem).

[bonio_j]

I edited my original post "married" related comment has been updated.

[sanami]

Dear Bonio and Jambo,

I just read your comments, and in the meantime had reached the same conclusion. I would need to get the PR status with my own 'rights', so by excising the treaty rights...and the only benefit there is that I can do that after 5 years and not 6 years.
Like I said, came to that conclusion myself, despite another two advicers and laywers, claiming I can apply 5 years after being married. Luckily I did not pay for the advice.

However I am going to see a solicitor soon, she is the leading immigration solicitor, just to see if there is any way around it. I do not know the fact I worked 2006-2008 maybe? I am not sure. But wanted to find out so that my curiosity is satisfied.

I am only very happy that I found out about that 'comprehensive health insurance' before sending any form, it would be devastating to loose £874. The past few days got me really thinking how deceptive all those rules are. How is it that you can get NHS access immediately (even if you are non-EEA), no one is going to say no to you, then all the european agreements are 'well-known' and then that surprise when you actually start checking the rules. I must say I prefer Poland's approach when if you cannot prove it, you cannot use it (as much as on the basic human level it is cruel, I am talking strictly in regards to knowing owns rights..).
Because if I had known all these, I would simply would have simply made a trip to Poland and got my EKUZ card done.

Anyway sorry for the rant but it is irritating so say the least.

Going back to your case Bonio, surely they had no right (legally- but we all knows that different rules apply to home office and council's workers:) to refuse your wife's PR. Have you managed to get through to them over the phone? Fingers cross!
Sanami

[Jambo]

If you can get a letter from your home country health authorities confirming you have been covered by them during your studeis, that might be accepted by the HO (instead of EHIC). There have been several reports of such in the forum. You can then apply for PR confirmation using form EEA3 and if confirmed apply immediately as a spouse of BC.

[sanami]

Hi Jambo,

that would be an option, however In Poland you need to contact the government and let them know you want your family member to be insured on the basis that you work (I was usually insured by my parents), however given that I got married in 2007, I my husband, and my parents all thought that similar rule would apply here, and my parents did not put me under their insurance.

If that had taken place ( and it would not cost anyone anything) I could have either have EHIC (EKUZ) cards now to prove it , or like you said get the document confirming it.

The incongruity between the reality and the immigration law is beyond my comprehension here. It is a shame that many people only find out about this weird NHS entitlement when they decide to apply for naturalisation. This should be clear from the moment you come- if you do not work you cannot have NHS access, regardless of anything else. As in fact British person, who does not work, and has no benefits that pay NIN 'legally' should not be entitled to the NHS, and I presume hardly anyone is aware of it.

Sanami

[sanami]

Just one more thing, why you mention applying for PR? This is not necessary at all, once you have the status you do not need to fill EEA3 form. You either wait 1 year if you are EEA or apply immediately after 12months passed if married to a British citizen.

I presume idea of 'tasting the water' is behind this advice, but as far as I have learn either your case is straightforward and you would get naturalised without complications, or not at all and you would be rejected for both PR and naturalisation. Trying your luck with PR, never if case is complicated is never a guarantee of getting naturalisation.

Just saying...

[Jambo]

The incongruity between the reality and the immigration law is beyond my comprehension here. It is a shame that many people only find out about this weird NHS entitlement when they decide to apply for naturalisation. This should be clear from the moment you come- if you do not work you cannot have NHS access, regardless of anything else. As in fact British person, who does not work, and has no benefits that pay NIN 'legally' should not be entitled to the NHS, and I presume hardly anyone is aware of it.

Just to make it clear. This has nothing to do with eligibility for NHS. Every resident in the UK has free access to NHS. The only purpose of CSI is to meet the EEA immigration regulations. Nothing to do with NHS. In fact, the European Commission is in a discussion with the UK over the HO requirement of CSI in a country where health is free to everyone.

[Jambo]

Just one more thing, why you mention applying for PR? This is not necessary at all, once you have the status you do not need to fill EEA3 form. You either wait 1 year if you are EEA or apply immediately after 12months passed if married to a British citizen.

I presume idea of 'tasting the water' is behind this advice, but as far as I have learn either your case is straightforward and you would get naturalised without complications, or not at all and you would be rejected for both PR and naturalisation. Trying your luck with PR, never if case is complicated is never a guarantee of getting naturalisation.

Just saying...

It's more than just testing the water (and reducing risk £55 compared to £874). If the European Case team confirm your PR, you just wait 1 year and apply for BC. In that case, the Nationality team will not question your PR status. So you only need to get lucky once (while dealing with the experts on EEA rules so more chance for discretion).

[sanami]

Dear Jambo,

well it is incongruent if for the immigration purposes entitlement to free access to NHS is not enough for them, and that I suppose it to prove that you are not using government resources if not paying for them (by paying NIC).

My apologies, I had no idea that the home office team that checks for the PR status is different from the one that does checks before the naturalisation. So if one has an official PR card, does that mean than when applying for naturalisation they just send in the card as a proof and then only documents proving 5 years residency ( in addition to passports or other id proof)?

Sanami

[Jambo]

Correct. If you have PR Confirmation for over a year, you just submit that together with your passport (and Life in the UK test & English requirement). You don't even need to provide proof of residence for 5 year. Your passport is normally enough (even though it is not stamped as EEA national).

[bonio_j]

Jambo,

Would PR status be backdated for EEA national(s) in similar cases?

Say EU national and family member of an EEA worker, resides in uK for 6 years, I understand that
such person can apply for confirmation of the ILR status, which is granted "automatically"
after 5 years. So I assume that one can apply for confirmation of PR and follow with naturalisation
application immediately and not after another 12 months.

This is how process should work since people apply for naturalisation directly after
6th year (5 years for PR + 12 months), however I have heard about case where PR was granted at
the time of application which was done long after 5th year, and its likely, again, error of a case worker.

Sanami,

Please read this, http://www.airecentre.org/data/files/re ... r-2013.pdf
the people behind AIRE strongly disagrees with british interpretation on the CSI requirement.
Also since your at the time (2008-2011) husband had been working in questioned period of time, I feel
you are discriminated as EEA national, you are simply treated worse b/s your partner is not EEA worker.
i think in your case it might be worth to seek further legal advise on the matter, it might be a good case
for an appeal as well, you can apply for just EE3 and appeal afterwards if refused. In my opinion family member
of working person (who legally resides in UK) should not be required to hold CSI, regardless of his / her origin.

And just one extra comment with regards to PR application and naturalisation process. This
s/b simple once PR is granted (as explained by Jambo). However, I might be wrong,
I couldn't find the related thread. However while searching for information on cases similar to mine
I saw at least one forum thread here, where someone have been granted PR and followed with
application for citizenship however that had been refused b/s work / non work periods which were ok for
PR process, were not accepted for naturalisation process (there was too many months of unemployment
periods - multiple occurrences - not one long period), so applicant was told that
he was OK for PR not for, naturalisation, though. The other case I read about was the one in which
someone was granted PR (after 5 years) and then after another year the application for
his citizenship was refused b/s he didn't document where he was working during 6th year,
what, again is not right as EEA national is not required to work after 5 years, he just need to
prove his residency status.

The point is, case worker's interpretation vary from case to case and sometimes they do very poor
job. From the other hand, on this and similar forums people tend to write about their horror stories,
the ones who had gotten what they wanted, do not bother to post in most cases, obviously.

Anyway, we submitted the appeal for my wife case early this week, time will tell how
the whole saga ends.

[sanami]

Dear Bonio,

as far as I am aware if you are EEA, you would need to work for the 6 years. Just holding the PR status for 12 months is not enough..people I know of all had worked for 6 years previous to obtaining naturalisation. This is how I would understand the rules at least.
To be eligible to apply for naturalisation after 5 years (meaning immediately after qualifying for PR) you would need to be married to a British national. So let's say you came here in 2007, and your wife in 2008. You obtained your BP in 2013, the moment you get it (or naturalisation papers) your wife would have the right to apply immediately for the naturalisation, cutting short her qualifying period from 6 to 5 years.

Thank you so much for the link. It is very interesting what they say about comprehensive health insurance. Like I said what immigration requires is in contradiction to what we are entitled, which is a shame, but I suppose no surprise. I will definitely give them a call, to find out about that, but would not risk sending application even if the confirm this. I would not like to loose the money, as I believe is very probable of happening.
I would be inclined to just wait to 2016 to apply and have peace of mind, but next year I am planning to go abroad to do my masters, and I am afraid that this would be another gap, and the whole process would need to be started once again. I was reading and rereading the exemptions from the absences to UK, but again I am afraid that the caseworker may be given too much freedom in interpreting this point as well.

If there is anyone who was absent for longer period from UK during the qualifying period and got British passport do speak up!

Sanami

[sanami]

Just to update you. Yep, a very well established solicitor confirmed that I can only apply after meeting the residency requirements (5 years of exercising the treaty rights).
So counting time since 2011.

Can anyone direct to a thread that discusses the absences from the UK during the qualifying period? I know that there are some exemptions to being away from more than 450 days and I wonder how does it look in reality.

Sanami

[dbdb]

Hi Bonio_J,
Has your wife been successful in getting the ILR eventually after your appeal?
I am trying to find out if it is worth for my wife to apply- she needs it in order to be able to apply as a wife of BC.
Thanks