Spouse eligible for PR ?

[Scandic]

Hello,

I am trying to find out whether my spouse is by now eligible to apply for a Permanent Citizenship in UK. Unfortunately I have so far received several opposing views and it is unclear what to do.

I am a Norwegian who came to UK on 10/Sep/2004 to study for an 11-month Master degree. My wife is Thai citizen and obtained an "VISA EEA family permit: Family Member" and joined me in UK on 17/Oct/2004. Her permit was valid from 25/Aug/2004 - 25/Aug/2005

We did not have any medical insurance during my time as a student.

I graduated in July 2005 and started full-time work in UK on 22/Aug/2005 (3 days before my wife's permit expired). I immediately applied for a "Residence Permit" card, which was issued on 12/Oct/2005, valid for 5 years until 12/Oct/2010.

As I started work, my wife applied for "A right of residence in the UK as the family member of an EEA national", which was issued on 19/Oct/2005, valid until 12/Oct/2010.

We have now been in UK a bit over 5 years. Does she qualify to apply for British Permanent Residency by now? Does the first period as the wife of a student count, given that we did not have medical insurance?
Or do we have to wait until October 2010?

Any assistance will be much appreciated.

best regards
Ivan

[dublin3]

No you don't have to wait you can apply now because the time you were student you were exercising your EU treaty rights so it shouldn't be any problem.
she will be issued with PR.

[Scandic]

No you don't have to wait you can apply now because the time you were student you were exercising your EU treaty rights so it shouldn't be any problem.
she will be issued with PR.

Thank you for your positive response, however I am concerned whether my first year as a student qualifies as "exercising my EU treaty rights" considering that we did not have "comprehensive medical insurance".

http://www.opsi.gov.uk/si/si2006/20061003.htm
"Statutory Instrument 2006 No. 1003, The Immigration (European Economic Area) Regulations 2006"
Part 1, paragraph 4.1 (D)
"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[9] 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.

This is the exact area where I get conflicting advice... Can you please provide any reference to a text or regulation that shows that even without the medical insurance cover, those 11 months still count as part of the 5 years. I am concerned about submitting an application that could take 6-9 months to process before I am sure that the criteria are fulfilled.

Many thanks
Ivan

[datuchi]

Dont know if u read other posts here esp. the one titled compr. ins.
In brief, on the EEA4 form they will ask for proof of exercising treaty rights and u wont be able to provide it. 5yrs from when u can prove CONTINUOUS exercise for 5 yrs.
Read through other topics here, will make it clear

[Scandic]

Dont know if u read other posts here esp. the one titled compr. ins.
In brief, on the EEA4 form they will ask for proof of exercising treaty rights and u wont be able to provide it. 5yrs from when u can prove CONTINUOUS exercise for 5 yrs.
Read through other topics here, will make it clear

Datuchi, I have spent literally about 6 hours reading a large number of posts on this very website. You can see that even in this thread, there are now 2 conflicting positions. You state that I can't prove continuous exercise of the treaty rights and therefore she's not eligible. On the contrary, Rebel82 writes just above that it's no problem, we can go ahead and apply now.

I have also visited 4 immigration advisers (paid total £750) and called UKBA 3 times. The immigration advisers had split opinions "3 against and 1 for", and UKBA was split "2 against, 1 for".

brgds
Ivan

[Obie]

Scandic i am confident that you qualify. The fact that the HO issued your wife an EEA family permit, indicates you were and are a qualified person.

I suspect you can apply now, infact you qualified since this summer gone.

They will have to be extremely mean to ask you for a medical insurance covering 2004, when there was no policy in place for Medical insurance to be held then.

Were you doing any part time work during your studies?

Can i ask if you held a registeration certificate during that 2004 period.

92 In respect of the application of the principle of proportionality to the facts of the Baumbast case, it must be recalled, first, that it has not been denied that Mr Baumbast has sufficient resources within the meaning of Directive 90/364; second, that he worked and therefore lawfully resided in the host Member State for several years, initially as an employed person and subsequently as a self-employed person; third, that during that period his family also resided in the host Member State and remained there even after his activities as an employed and self-employed person in that State came to an end; fourth, that neither Mr Baumbast nor the members of his family have become burdens on the public finances of the host Member State and, fifth, that both Mr Baumbast and his family have comprehensive sickness insurance in another Member State of the Union.

93 Under those circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of the provisions of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right

3.4 Sickness Insurance
Persons must not become a burden on the public finances of the host Member State. In paragraph 93 of Baumbast, the ECJ found that it was disproportionate for a lack of sickness insurance that covered emergency medical treatment within the UK to be a reason for refusing to grant a right of residence on this basis. Furthermore, the law in regard to the NHS prevents us from restricting people from obtaining medical treatment after they have been here for more than 12 months.
Presenting Officers should seek to argue that an EEA national who holds no form of medical insurance is not appropriately covered. Where evidence of medical insurance is produced, it must clearly demonstrate that the EEA national and their families are covered in respect of all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions. Any arguments should focus on whether or not the EEA national or their

[Scandic]

Scandic i am confident that you qualify. The fact that the HO issued your wife an EEA family permit, indicates you were and are a qualified person.

I suspect you can apply now, infact you qualified since this summer gone.

They will have to be extremely mean to ask you for a medical insurance covering 2004, when there was no policy in place for Medical insurance to be held then.

Were you doing any part time work during your studies?

Can i ask if you held a registeration certificate during that 2004 period.

92 In respect of the application of the principle of proportionality to the facts of the Baumbast case, it must be recalled, first, that it has not been denied that Mr Baumbast has sufficient resources within the meaning of Directive 90/364; second, that he worked and therefore lawfully resided in the host Member State for several years, initially as an employed person and subsequently as a self-employed person; third, that during that period his family also resided in the host Member State and remained there even after his activities as an employed and self-employed person in that State came to an end; fourth, that neither Mr Baumbast nor the members of his family have become burdens on the public finances of the host Member State and, fifth, that both Mr Baumbast and his family have comprehensive sickness insurance in another Member State of the Union.

93 Under those circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of the provisions of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right

3.4 Sickness Insurance
Persons must not become a burden on the public finances of the host Member State. In paragraph 93 of Baumbast, the ECJ found that it was disproportionate for a lack of sickness insurance that covered emergency medical treatment within the UK to be a reason for refusing to grant a right of residence on this basis. Furthermore, the law in regard to the NHS prevents us from restricting people from obtaining medical treatment after they have been here for more than 12 months.
Presenting Officers should seek to argue that an EEA national who holds no form of medical insurance is not appropriately covered. Where evidence of medical insurance is produced, it must clearly demonstrate that the EEA national and their families are covered in respect of all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions. Any arguments should focus on whether or not the EEA national or their

Obie, thank you very much for the response and case reference.

In regards to your questions,
1. No, I did not have any part time job (I had plenty sufficient funds for both myself and wife and concentrated on my studies).
2. I unfortunately did not have a residency card during this period - I only started looking into the matter when graduation approached.

brgds
ivan

[datuchi]

Ivan, there r conflicting views because this scenario has NOT gone to court on this issue! Contrary to what Obie has written about Baumbast! That case refers to those applying for a residence card and u can only cite it if u go to court to draw paralels.
The fact that it says Guru under Obie's nick doesn't mean anyth. He hasn't himself gone through the system to speak about it with confidence, whereas i have NEVER heard ANYONE obtain PR on the basis of missing insurance covering the past.

I understand that u wish to hear whatever is pleasant to your ear, but be realistic. The fact that 3 out of 4 paid professionals share My view means that the opposing view could potentially only be invoked through a Judicial Review of the administrative decision. This takes time and money, by the time u get there it will be October!

It's up to u, but if u cant provide proof u can't have ur wife to qualify. And the fact that she got a Family Permit dont mean jack, Obie!
Have u had a look at the application form eea4? It will ask u to provide proof that ur eea national exercised rights fir 5 yrs, and Ivan hasnt!
The fact that it would be totally disproportionate to refuse application on this ground is another issue and the court would support ur case, BUT, that doesnt mean that caseworkers are free to exercise discretion WITHOUT some rule or regulation permitting them to.

I already referred to it earlier, there needs to be a case covering this part scenario. Good luck

[datuchi]

http://www.immigrationboards.com/viewtopic.php?t=46826

read thriugh this as well pls

[Obie]

I think we have to try and be civil to each other and not engage in personal attack.

Under EEA regulation, a person will not have an EEA family permit issued to them, except the family member is a qualified person.

13. - (1) An entry clearance officer must issue an EEA family permit, free of charge, to a person who applies for one if he is a family member of -

(a) a qualified person; or

(b) a person who is not a qualified person, where that person -

(i) will be travelling to the United Kingdom with the person who has made the application within a year of the date of the application; and

(ii) will be a qualified person on arrival in the United Kingdom.

Therefore the fact that your wife was issued an EEA family permit on that basis , indicates that you were considered a qualified person then.

There were no requirement in Regulation 2000 for a Medical Insurance to be provided, before a residence document or permit is to be issued to an EEA nationals or their family members. Even if they request a medical insurance, the availability of one issued by Norway, should suffice for that purpose according to Baumbast.

In anycase, the Op would have absolutely nothing to loose applying , if your analysis is correct, and everthing to gain if mine and other are right.

[BLK235]

Scandic i am confident that you qualify. The fact that the HO issued your wife an EEA family permit, indicates you were and are a qualified person.

I suspect you can apply now, infact you qualified since this summer gone.

They will have to be extremely mean to ask you for a medical insurance covering 2004, when there was no policy in place for Medical insurance to be held then.

Were you doing any part time work during your studies?

Can i ask if you held a registeration certificate during that 2004 period.

92 In respect of the application of the principle of proportionality to the facts of the Baumbast case, it must be recalled, first, that it has not been denied that Mr Baumbast has sufficient resources within the meaning of Directive 90/364; second, that he worked and therefore lawfully resided in the host Member State for several years, initially as an employed person and subsequently as a self-employed person; third, that during that period his family also resided in the host Member State and remained there even after his activities as an employed and self-employed person in that State came to an end; fourth, that neither Mr Baumbast nor the members of his family have become burdens on the public finances of the host Member State and, fifth, that both Mr Baumbast and his family have comprehensive sickness insurance in another Member State of the Union.

93 Under those circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of the provisions of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right

3.4 Sickness Insurance
Persons must not become a burden on the public finances of the host Member State. In paragraph 93 of Baumbast, the ECJ found that it was disproportionate for a lack of sickness insurance that covered emergency medical treatment within the UK to be a reason for refusing to grant a right of residence on this basis. Furthermore, the law in regard to the NHS prevents us from restricting people from obtaining medical treatment after they have been here for more than 12 months.
Presenting Officers should seek to argue that an EEA national who holds no form of medical insurance is not appropriately covered. Where evidence of medical insurance is produced, it must clearly demonstrate that the EEA national and their families are covered in respect of all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions. Any arguments should focus on whether or not the EEA national or their

I think you are misinterpreting Baumbast Ruling.

This ruling doesn't dispute the requirement for having sickness insurance. Mr Baumbast had an insurance, with the only limitation that it didn't cover emergency treatement. What this ruling is about is that insurance not covering emergency treatments should be deemed as sufficient to satisfy conditions of Council Directive 90/364/EEC.

19 During the material period, Mr and Mrs Baumbast owned a house in the United Kingdom and their daughters went to school there. They did not receive any social benefits and, having comprehensive medical insurance in Germany, they travelled there, when necessary, for medical treatment.

89 As to the condition relating to sickness insurance, the file shows that both Mr Baumbast and the members of his family are covered by comprehensive sickness insurance in Germany. The Adjudicator seems to have found that that sickness insurance could not cover emergency treatment given in the United Kingdom. It is for the national tribunal to determine whether that finding is correct in the light of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

Now if you look at paragraph 93 more closely you will see it reiterates that Mr Baumbast had sickness insurance, but it didn't cover emergency treatment. And the ruling says it's disproportianate to require insurance to cover emergency treatment as well.

93 Under those circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of the provisions of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right

They will have to be extremely mean to ask you for a medical insurance covering 2004, when there was no policy in place for Medical insurance to be held then.

I don't know how you came to this conclusion. Baumbast ruling was made on 17 September 2002.

The directive that requires sickness insurance goes back to 1990.

6 Under the first subparagraph of Article 1(1) of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26), Member States are to grant the right of residence to nationals of Member States who do not enjoy that right under other provisions of Community law and to members of their families as defined in Article 1(2) of that directive, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

With regards to UK EU Appeal caselaws it doesn't say it's OK to not have sickness insurance.

3.4 Sickness Insurance
Persons must not become a burden on the public finances of the host Member State. In paragraph 93 of Baumbast, the ECJ found that it was disproportionate for a lack of sickness insurance that covered emergency medical treatment within the UK to be a reason for refusing to grant a right of residence on this basis. Furthermore, the law in regard to the NHS prevents us from restricting people from obtaining medical treatment after they have been here for more than 12 months.
Presenting Officers should seek to argue that an EEA national who holds no form of medical insurance is not appropriately covered. Where evidence of medical insurance is produced, it must clearly demonstrate that the EEA national and their families are covered in respect of all pre-existing medical conditions that require medication and/or treatment as well as any treatment that may be required for serious or long-term medical conditions.

[Obie]

Please don't misquote me. Without a stretch of the imagination, i am not insinuating a sickness insurance is not required. What i said is that the UK demand that you get a comprehensive sickness insurance, issued by a UK provider as opposed to an EU medical insurance, is not strictly speaking a lawful requirement.

[datuchi]

We are civil, it's just everyone must remember that when giving advice, it's not what is legal that counts, but what is PRACTICAL!
In another post, with Megie83 you suggested that it doesn't matter what type of insurance, if any, she should obtain, whereas I suggested that, as she has a choice and an opportunity, she should go for a UK based insurance in order to avoid a headache.

In the instant case with Scandic here, practicality should override theory. Yes, he could argue loads of points, and that the Directive is not meant to impose unrealistic hurdles on those who otherwise complied with the requirements and were not a burden on the society at any time. BUT, remember that we are talking about extra time and expense.

You can try and argue all the above in writing to the HO, and you will get standard answers etc. not leading anywhere.

I am personally surprised with Ivan spending £750 on solicitors??? If it is SOOO important that you cannot wait till October/2010, then you may as well apply on the form EEA4 for your wife and supply the docs covering the full 5 years.

If you are lucky, they won't ask for proof of the WHOLE period, and won't notice the missing bit, but if they did, they you could write a letter to them explaining your thoughts.

You don't lose anything, and the application is free. If worst happens, you apply again in October.

I don't think there is more to add, really, there have been loads of posts on this point, and one thing remains clear- IT REQUIRES A COURT DECISION TO RULE ON THIS VERY POINT OF NOT HAVING INSURANCE COVERING THE PAST WHERE THE PERSON WAS IN FACT NOT A BURDEN TO THE SOCIETY!!!

I think we have to try and be civil to each other and not engage in personal attack.

[Scandic]

Hi all,

Thank you for an interesting discussion and good points.

There is an urgency to this, which is why we don't want to wait until Oct/2010.

I will leave UK at the end of Jan/2010 to take up work in a "high risk, undesirable" country (non-EU), and my wife has no intention to join me there. The posting is expected to be 2-3 years.
She wants to stay in the UK in the meantime. So the way we currently see it is that either
"Plan A" she gets PR now (lodge the application before I leave)
"Plan B" we divorce and she retains her residency (and we re-marry sometime later)

"Plan B" appears more safe, with less room for interpretation and risk than "Plan A".

"Plan C" appears to be claiming that I am "self employed" or "self sufficient" in the UK until Oct/2010. I do have substantial monthly investment income (which I can pay tax on), and can pay for a medical insurance. Due to operating in "difficult countries", I also have two passports (identical duplicates) and can leave one with my wife, which would have no foreign work permits or indications that I work full-time in another country. However, I think this is not the right way to do it and would much prefer to do it by the book.

many thanks
Ivan

[datuchi]

I don't know if you thought of Plan B from reading my topic on not getting caught out or it's obvious to everyone ))

Both Plan B and C are kind of illegal, as for a divorce you MUST have a valid and genuine reason. Although, it's not up to anyone to tell you what to do, and I personally would have chosen either of the Plan B or C, if I were in your shoes. Plan C is even smoother, with the exception that you will need to show BOTH proof of EXERCISING the Rights AND the ACTUAL Residence. But the residence can be proven by bank statements, some expenditure on your card here, the tenancy agreement in your name, rent going out etc. basically, easy peasy.

There is ONE final bit, there is some provision in the Regulations 2006

Continuity of residence
3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in
the United Kingdom under regulation 5(1) and regulation 15

(c) any one absence from the United Kingdom not exceeding twelve months for an important
reason such as pregnancy and childbirth, serious illness, study or vocational training or an
overseas posting.


You yourself probably noticed this one, but as you are going away for over 12 months, you are not eligible. However, if it is possible to somehow turn the posting into a series of 4-6 blocks of 6 months each, then by the time October comes you will have only been out of the country for around 9-10 months, within the 12 month requirement!

I would consider taking out medical insurance just in case when you decide to leave. Then, make an application NOW and try to argue that she is eligible already.
By the time your application is processed you will have had the insurance for the whole period just in case to be covered!!! And your options will be open from then to make a choice!!!

It is when you hear the response to your initial application that you will consider your plans, with the exception of Plan B! So, in October, Plan C would then become a reality. And you will have been covered medically throughout. Obviously, as I mentioned, this route is awkward as technically you are not a RESIDENT, but as I already mentioned, no one suggests what you shall do, it's only in theory and is up to you...

Alternatively, in October she could apply as Plan D, on the basis of you having exercised your Rights for the period of 5 yrs, but with the difference of how. Not as a self-sufficient (Plan C), but as a WORKER!

I don't think you should stress out too much about it. Make an application, take out insurance before you leave in Jan, and by the time you've heard the response, you will make a decision then.

Hi all,

Thank you for an interesting discussion and good points.

There is an urgency to this, which is why we don't want to wait until Oct/2010.

I will leave UK at the end of Jan/2010 to take up work in a "high risk, undesirable" country (non-EU), and my wife has no intention to join me there. The posting is expected to be 2-3 years.
She wants to stay in the UK in the meantime. So the way we currently see it is that either
"Plan A" she gets PR now (lodge the application before I leave)
"Plan B" we divorce and she retains her residency (and we re-marry sometime later)

"Plan B" appears more safe, with less room for interpretation and risk than "Plan A".

"Plan C" appears to be claiming that I am "self employed" or "self sufficient" in the UK until Oct/2010. I do have substantial monthly investment income (which I can pay tax on), and can pay for a medical insurance. Due to operating in "difficult countries", I also have two passports (identical duplicates) and can leave one with my wife, which would have no foreign work permits or indications that I work full-time in another country. However, I think this is not the right way to do it and would much prefer to do it by the book.

many thanks
Ivan

[Obie]

Ivan, apart from the fact that plan B is a complete sham and charade , it will take a long time to succeed, by then you would qualify for PR, by the means suggested by Dutchi, not that i am in agreement with it, by any chance.

If you go through divorce, you will essentially be saying your marriage has irretrievably broken down, when in actual fact, it hasn't.

You are allowed to be out of the country for 6 months in every year and this will not affect you right of residence. So, if you left the UK in say for example May and your wife apply in October, her rights will not be jeopordise.

Go on with the EEA4, and try not to spend any further cash on those lawyers. I am sure you can find some good cause to invest in

[datuchi]

one final bit, if you are worried about her EEA card expiring in October 2010, there is a simpler way... if she can get a duplicate passport, like yourself, from the Thai embassy, without annulling her older one, simply apply for another EEA2 card, which is valid for 5 yrs.

Then, in October, with the old passport, apply for PR. In any case, she'll have a document in her new passport allowing to travel, even if only on the face of it.

[BLK235]

Just a small thing. As you started work in Aug 2005 your wife should be able to apply for PR in Aug 2010 not Oct 2010.

If you can show you were looking for work since July 2005 then she should be able to apply in July 2010.

As far as I know under EU rules there is no minimum requirement as to how many hours per week you need to work to qualify as a worker, so if you worked just a couple of hours a week back when you were a student you might have qualified.

[datuchi]

This is a very good point, well spotted! 5 yrs for your wife will start to tick from the time you can prove exercising your treaty rights and not when she was issued with the residence card.

Have you got the required proof of your employment in Aug 2005? if yes, and you have uninterrupted proof for the 5 yrs since then, your wife can apply in Aug 2010.

Just a small thing. As you started work in Aug 2005 your wife should be able to apply for PR in Aug 2010 not Oct 2010.

If you can show you were looking for work since July 2005 then she should be able to apply in July 2010.

As far as I know under EU rules there is no minimum requirement as to how many hours per week you need to work to qualify as a worker, so if you worked just a couple of hours a week back when you were a student you might have qualified.