EEA or 10 year residency PR route?

[LG1000]

Hi All,

I would appreciate your advice on my situation as I am planning to apply for my permanent residency:

Non EEA national, arrived in UK Sept. 2006 for studies. Completed studies without any gap and started working in 2011. In continuous employment since 2011 until now except for less than a month gap in 2014 when I was switching from one job to another.

In Oct 2011 I got married and my wife is a Spanish national. She started her PhD in Oct 2010 and finished it last year in December. She was in Spain from Feb. to May this year. Since June she has been looking for jobs and registered at the Job Centre.

My current residence card (family member of an EEA national) is expiring in Feb. 2017.

My question is which is the best route for me to apply for PR? Shall i take the 10 year residency route? or shall i apply as an EEA national spouse, keeping in mind that she does not have a job or UK medical insurance.

Thank you very much for your help in advance.

[ohara]

Do you still have a valid UK visa?

[LG1000]

Yes, as i have mentioned in my original post:

My current residence card (family member of an EEA national) is expiring in Feb. 2017.

Thank you.

[ohara]

An EEA residence card is not a UK visa, it is a residence document under the EEA regulations.

[LG1000]

Dear ohara,

Thank you for your reply, wasn't sure about this difference, any comments on how this can affect my PR application options?

Thank you.

[ohara]

As you are on EEA immigration route and NOT UK immigration route, you cannot normally acquire ILR through 10 years residence as you have not had valid leave throughout those 10 years. They are different sets of laws with different rules. Also, the application for ILR is currently £1875 whereas PR under the EEA regulations is free, so I'm sure you can see which path is in your best interests!

However, it is questionable whether your wife is currently a qualified person under the EEA regs. The definition of a worker does include being a jobseeker, however this is generally only allowed for up to 6 months (I don't believe there is a hard and fast rule, but obviously there must be a limit otherwise any EEA citizen could indefinitely claim they are a job seeker without ever having any intention to work).

She should get CSI in place immediately, so she could at least qualify as a self sufficient person. Neither of you are claiming benefits are you?

The potential problem with your current situation is that if HO no longer class your wife as a qualified person (due to lack of exercising treaty rights), both of your PR clocks will have already reset to zero and won't start ticking until she regularises her status.

[LG1000]

Hi ohara,

Thank you again for your reply.

You mentioned about PR clock being set to zero. In my wife's case she has been here since Oct 2010 so she already has passed the 5 year period. Can she apply for PR based on this, although she is not a qualified person as of recently? If yes what would be my options for PR application?

Neither of us are claiming any benefits. Also she is financially dependent on me, will that help in the situation i.e. not having CSI for herself?

[ohara]

Does your wife have a full continuous 5 year period of exercising treaty rights as a qualified person since she came to the UK? If yes, then she will have already acquired PR. She must have had CSI in place as a student if she intends to use this period to count towards the 5 years.

There is no need to continue exercising treaty rights once you have PR. If there were any gaps in the 5 year period where she was not exercising treaty rights, the PR clock will reset to zero (for both of you) and will not restart until she is again exercising treaty rights. If she does not have PR and is not exercising treaty rights, technically neither of you have a basis to remain in the UK.

As a non-EEA family member, your own economic activity is immaterial. Your wife can qualify as a self sufficient person from your funds, but she must have CSI in place.

If your wife has indeed acquired PR, then you will acquire PR 5 years from the date of your marriage I believe.

[CR001]

As you are on EEA immigration route and NOT UK immigration route, you cannot normally acquire ILR through 10 years residence as you have not had valid leave throughout those 10 years.

A migrant can use a combination of UK visa and EEA route to apply for ILR based on 10 years long residence, the rules permit it, provided that the applicant submits evidence of the time spent on the EEA route and the EU citizen exercising treating rights and being a qualified person for the full period that the applicant is claiming time spent as EEA FM.

If the EU spouse did not have CSI or a foreign EHIC for the FULL duration of her studies, the OP won't qualify and cannot use the time on EEA RC

[LG1000]

Hello ohara and CR001,

Thank you for your replies. In my wife's case she did not have a CSI in place BUT she was a PhD student with full scholarship (no dependence on public funds). Under these conditions, do you think there is a possibility that she can be exempted from this requirement?

Also in the forums I have read that HO started enforcing CSI rule for students from 2011 (my wife started in 2010) although she did not apply for registration certificate, any comments on this please?

Thank you.

[ohara]

I believe she would have required CSI during her entire time as a student in order to be exercising treaty rights. As CR001 said an EHIC from her own country which was valid for the duration would also be accepted.

There was a transitional arrangement which exempts those who were issued with a registration certificate as a student before June 2011.

[noajthan]

Also in the forums I have read that HO started enforcing CSI rule for students from 2011 (my wife started in 2010) although she did not apply for registration certificate, any comments on this please?

Thank you.

Yep, enforcing and backdating a requirement which has been in place since 2006.

[Noetic]

Hi ohara,

Thank you again for your reply.

You mentioned about PR clock being set to zero. In my wife's case she has been here since Oct 2010 so she already has passed the 5 year period. Can she apply for PR based on this, although she is not a qualified person as of recently? If yes what would be my options for PR application?

Neither of us are claiming any benefits. Also she is financially dependent on me, will that help in the situation i.e. not having CSI for herself?

Your wife must have had CSI or a foreign EHIC or worked during her PHd for her time since 2010 to count as exercising treaty rights.

Did she have any of these? The fact you got an RC as her spiude suggests she did?

If not you need to get her CSI so she can at least be self sufficient. Luckily the non EEA spouse's income can be used to prove self sufficiency.