EEA2 application with wife (EA national) on maternity leave

[fufilnikku]

Dear Members
I am an indian national married to a polish national. I have been living in U.K. for last 5 years while my wife has been here for just over 2 years. After marriage, we moved to South Wales from Scotland due to my new job while she was on maternity leave. She has just finished her maternity leave (and Maternity Allowance) but has decided to look after the baby for another year or so. This makes her status: currently not-working.

I have recently applied for EEA2 application with my wife (EA national) as financially self-sufficient based on my income and our bank balance. I have also included pay-slips from my wife's last employment to indicate that she has ceased to be in employment in recent past.

We have been contemplating the idea of applying for child tax credit/child benefit. But, i am not sure if claiming it/them would have any effect on my application. I am afraid that claiming child tax credit and/or child benefit while my wife is currently unemployed (although temporarily), could potentially establish my wife as "un-necessary burden on public funds" and provide a reason for refusal to my application. I phoned the EEA enquiry office but didn't get a clear answer. I was told that it depends upon the case worker which seemed a very vague reply to me.
Please note that i haven't applied for child tax credit/child benefit or any other type of benefit/public fund during my stay in U.K.

Please advise. Thanks in advance.

[nonspecifics]

There could be problems with UKBA.

The EEA national must be exercising treaty rights.

If EEA nationals want to exericise treaty rights as self-sufficient they are supposed to live without reliance on public funds.

Also, to be self-sufficient they should also have comprehensive sickness insurance (CSI) for themselves and all family members - without relying on the UK's NHS ( even if the non-EEA spouse works and pays tax and national insurance.)

Usually the EEA national has to be a worker to be able to claim benefits without it adversely affecting their situation with regard to UKBA.

She could probably meet the criteria for self-sufficient by relying on your income and the savings, if the need for CSI is met and no public funds are claimed.

[fufilnikku]

Many thanks for your reply. Appreciate it.

I have sent a Comprehensive Health/Sickness Insurance from BUPA (Their best policy) along with the application. It covers both me & my wife.

Could I also request your opinion on one more thing?
My wife has only recently stopped working due to our new-born daughter. She was an active worker i.e. exercising treaty rights for best part of 15 months. Would she be considered "temporarily" not-working in the eyes of UKBA? She has her best intentions to go back to work but not quite at this stage as she wants to look after our daughter for a year or so.

Would claiming only child tax credits (Not child benefit) be considered as reliance on public funds?

Again, thanks in advance.

[nonspecifics]

That's good you have CSI.

Child tax credits are also considered public funds.

You say you have already sent in the EEA2 application. If it were me, I would try to delay claiming child tax credits until the EEA2 is processed.

You were not claiming public funds when the application was sent in. You have CSI - strictly speaking the CSI should also cover the child, but they may overlook that as both of you have CSI. You are supporting your family through work and savings, so that is all in your favour and I think you should not worry about it.

Once you have the EEA2 it would normally be valid for five years.

If you then claimed tax credits for a limited amount of time, then unless they investigated, the problem would be when your wife applied for PR or you applied for PR after either of you completed five years under EEA regulations.

I believe the way UKBA look at it is that you are either exercising treaty rights or you are not. Voluntary unemployment ( not maternity leave) to be a full-time mother is regarded by UKBA as not exercising treaty rights - unless the person exercises treaty rights as self-sufficient.

Then UKBA may try to refuse PR on the basis of not exercising treaty rights for five continuous years, as you might be regarded as an unreasonable burden; but EU case law states that decisions must be based on the principle of proportionality.

They should take into account the length of time the person was dependent on benefits and the amount of benefits and the length of stay / work history of the person before refusing an application.

Even if they refused PR, it's not the end of the world. The non-EEA could just apply for another residence card. For the EEA national having pr or not does not make that much difference, as long as they are exercising treaty rights.

Hopefully, others who have gone through the same situation can give you feedback on how UKBA viewed this.

[Directive/2004/38/EC]

What is Child Benefit?

Child Benefit is a tax-free payment that you can claim for your child. It is usually paid every four weeks but can sometimes be paid weekly. There are separate rates payable for each child. The payment can be claimed by anyone who qualifies, whatever their income or savings.

There is absolutely no problem with you applying for the normal benefits that EVERYONE in the UK is allowed to have.

It would be illegal for this to be in any way held against you or your wife.

You are working in the UK. I very much doubt you or your wife or your child will ever be an excessive burden on public funds.

You are also allowed to use the NHS like anyone else.

And get normal everyday Tax credits: http://www.hmrc.gov.uk/taxcredits/start ... redits.htm

[nonspecifics]

Directive, he didn't ask if he would be able to claim benefits or use the NHS. That issue is not in doubt.

He asked could it affect his application with UKBA if he does claim benefits.

Like the situation with the NHS, domestic national law says it is ok to use it, but UKBA try to argue relying on the NHS - if you are a self-sufficient EEA - creates an unreasonable burden.

They are a couple, so the EEA national that is supposed to be self-sufficient to sponsor the husband to live and work in the UK would be claiming public funds. They have BUPA CSI, to show to UKBA, to meet that requirement of self-sufficiency - even if they also use the NHS, so the NHS is not really an issue.

Please can you explain to me how UKBA would accept that as being self-sufficient if they knew about it?

I do agree that they could assert they are not unreasonable burdens, as they have both worked, even if the EEA national is not currently working, the non-EEA husband is working and helping to support the EEA national.

However, I also agree with what he got told on the phone - it depends on the caseworker who handles his case. Some are stricter than others.

If fufilnikku is lucky, he will get caseworkers as magnanimous as Directive to deal with the applications.

[Jambo]

I agree with nonspecifics that this is down to the caseworker to determine if they have been unreasonable burden or not. If the EEA national is only temporary unemployed and not for the full length of the 5 years, it is likely not to be seen as unreasonable burden.

[Directive/2004/38/EC]

I agree with nonspecifics that this is down to the caseworker to determine if they have been unreasonable burden or not. If the EEA national is only temporary unemployed and not for the full length of the 5 years, it is likely not to be seen as unreasonable burden.

The question was about applying for "child tax credit/child benefit".

It is in no case an "unreasonable burden" for this couple to apply for these, unless they are also getting every possible other subsidy/benefit in addition. It is simply NOT up to the case worker, any more than it is up to the case worker to reject a non-EU spouse because they are not english speaking.

And if the case worker does something stupid, it will be overturned by a judge.

Even this couple can also use NHS. http://www.dh.gov.uk/en/Healthcare/Enti ... /DH_074374 They do not loose the NHS elegibility just because they have CSI

Anyone who is deemed to be ordinarily resident in the UK is entitled to free NHS hospital treatment in England.

...

What about British Nationals? I have paid taxes in the past.

Nationality or past or present payments of UK taxes and National Insurance contributions are not taken into consideration when establishing residence. The only thing relevant is whether you ordinarily live in the UK.

[Obie]

There seem to be strong argument from both sides of this argument.

The UKBA tend to hold the view that self-sufficient people should not claim benefits at all, as this will affect their ability to secure confirmation of their right of residence .

Several Jurisprudence from the CJEU, indicates the UK cannot continue to impose the right of residence test on EEA national who seek to claim benefits, for which the right of residence test will be undertaken, even if these people have never worked in the UK.

The commission has sent a reasoned opinion to the UK to change its regulations or face infringement proceedings.

In light of this, people in OP's situation could have strong backing from community law provisions, but UK law gives them no explicit entitlement.

If OP is rejected, i believe it may be down to a judge to decide whether the OP and his wife are unreasonable burden to the state.

A judge in such case will need to consider the prohibition of discriminatory practice between EEA national / their family members and the National of that memberstate.

If certain working people in the UK are entitled to Working and child tax credit, why should OP not, when he is a tax payer and family member of an EEA national.

[Directive/2004/38/EC]

The UKBA tend to hold the view that self-sufficient people should not claim benefits at all, as this will affect their right of residence

What evidence is there of this view being held by UKBA?

[nonspecifics]

http://www.ukba.homeoffice.gov.uk/eucit ... nationals/

exercising Treaty rights if you are:

employed or self-employed; or
studying; or
economically self- sufficient (meaning that you have sufficient funds to support you without requiring public funds); or
a jobseeker; or
retired; or
someone who has had to cease working in the UK owing to permanent incapacity.


Public Funds:

http://www.ukba.homeoffice.gov.uk/visas ... blicfunds/


Public funds include a range of benefits that are given to people on a low income, as well as housing support. These are:

income-based jobseeker's allowance;
income support;
child tax credit;
working tax credit;
a social fund payment;
child benefit;
housing benefit;
council tax benefit;
state pension credit;
attendance allowance;
severe disablement allowance;
carer's allowance;
disability living allowance;
an allocation of local authority housing;
local authority homelessness assistance;
health in pregnancy grant; and
income-related employment and support allowance.

Public funds do not include benefits that are based on National Insurance contributions. National Insurance is paid in the same way as income tax and is based on earnings. Benefits to which a person is entitled as a result of National Insurance contributions include:

contribution-based jobseeker's allowance;
incapacity benefit;
retirement pension;
widow's benefit and bereavement benefit;
guardian's allowance;
statutory maternity pay;
maternity allowance; and
contribution-related employment and support allowance.

[Obie]

Section 1.1 of Chapter 4 provides further guidance on the definitions of workers, self-employed
persons and work seekers.
EEA nationals who are in the UK as self-sufficient persons and students should be able to
support themselves without public funds. Such persons are only able to claim public funds
without losing their right of residence if they are able to demonstrate that they are not an
unreasonable burden on the state. To establish whether an EEA national is an unreasonable
burden on the state each case would need to be assessed on an individual basis. If the EEA
national is claiming public funds after having been in the UK for some time, the fact that s/he
had been self sufficient would be a factor in determining whether the burden is reasonable, as
would the length of time that s/he is likely to be in receipt of public funds. Although an EEA
national in this situation would be regarded as having a right of residence even though s/he was
in receipt of public funds, it would not be appropriate to issue him/her with a registration
certificate.

I should have made it clear that right of residence may not be a problem, but these people will most likely not be issued with a Registration Certificate , even if they are deemed not to be an unreasonable burden to public fund. The effect of this is that their partner will then not qualify for Residence Card.

As i said previously, this is a matter of discretion, and it is open to an individual judgement, or Judges judgement.

However confirmation of a right of residence for people who are on Public fund, even if they are deemed to have right of residence may be difficult.

I must make clear that i do not support UKBA's interpretation of the rules, and that in light of recent CJEU judgement, these rules will not stand to proper judicial scrutiny, however i do acknowledge that such is the ongoing practice.

[fufilnikku]

Hi everyone, Many thanks for your input. It is a very pleasant surprise to see you folks discussing my case with such a passion. I am really thankful for that.
On a happier note, I received my residence card this morning. It was dated from 28th Feb 2012. I applied on 12th Dec 2011. That's well within 3 months!!!
We didn't apply for any benefits while the application was under process. However, now that we have received the residence card, we are still sceptical about applying for child tax credits & child benefit. We have no interest in any other benefits/public funds. In the lights of ILR after 5 years of this residence card, Does my scepticism has any ground to it?

[EUsmileWEallsmile]

Hi everyone, Many thanks for your input. It is a very pleasant surprise to see you folks discussing my case with such a passion. I am really thankful for that.
On a happier note, I received my residence card this morning. It was dated from 28th Feb 2012. I applied on 12th Dec 2011. That's well within 3 months!!!
We didn't apply for any benefits while the application was under process. However, now that we have received the residence card, we are still sceptical about applying for child tax credits & child benefit. We have no interest in any other benefits/public funds. In the lights of ILR after 5 years of this residence card, Does my scepticism has any ground to it?

I know this is not what your post is really about, but can't resist! You applied on 12th Dec, you received RC this morning. That's three months and 5 days.

[Directive/2004/38/EC]

We didn't apply for any benefits while the application was under process. However, now that we have received the residence card, we are still sceptical about applying for child tax credits & child benefit. We have no interest in any other benefits/public funds. In the lights of ILR after 5 years of this residence card, Does my scepticism has any ground to it?

Do you want us to re-discuss what was written earlier in this thread?

[fufilnikku]

Hi everyone, Many thanks for your input. It is a very pleasant surprise to see you folks discussing my case with such a passion. I am really thankful for that.
On a happier note, I received my residence card this morning. It was dated from 28th Feb 2012. I applied on 12th Dec 2011. That's well within 3 months!!!
We didn't apply for any benefits while the application was under process. However, now that we have received the residence card, we are still sceptical about applying for child tax credits & child benefit. We have no interest in any other benefits/public funds. In the lights of ILR after 5 years of this residence card, Does my scepticism has any ground to it?

I know this is not what your post is really about, but can't resist! You applied on 12th Dec, you received RC this morning. That's three months and 5 days.

What i meant, it was issued on 27th Feb 2012. It's just that it got delivered on 17th March 2012. By this virtue, i commented about it being issued within 3 months.
Again many thanks to you all, I am really grateful for your help and i shall continue to offer my comments (taking cues from my own experience) to anyone on this forum.

[EUsmileWEallsmile]

Hi everyone, Many thanks for your input. It is a very pleasant surprise to see you folks discussing my case with such a passion. I am really thankful for that.
On a happier note, I received my residence card this morning. It was dated from 28th Feb 2012. I applied on 12th Dec 2011. That's well within 3 months!!!
We didn't apply for any benefits while the application was under process. However, now that we have received the residence card, we are still sceptical about applying for child tax credits & child benefit. We have no interest in any other benefits/public funds. In the lights of ILR after 5 years of this residence card, Does my scepticism has any ground to it?

I know this is not what your post is really about, but can't resist! You applied on 12th Dec, you received RC this morning. That's three months and 5 days.

What i meant, it was issued on 27th Feb 2012. It's just that it got delivered on 17th March 2012. By this virtue, i commented about it being issued within 3 months.
Again many thanks to you all, I am really grateful for your help and i shall continue to offer my comments (taking cues from my own experience) to anyone on this forum.

I know what you meant :)! The date of issue and date of receipt are two different matters. For practical purposes, I would say date of receipt is more important to the average applicant.