EEA national self sufficient: UKBA response

[askmeplz82]

Confused with the response from UKBA. read the section highlighted in Blue colour


Dear Home Office,

Please can you advise under what regulation or guidance
given to UKBA caseworkers about EU national exercise treaty right
as self sufficient when the couple are separated but not divorced
yet

this is about EU national exercise treaty right with the income of
NON EU national family member when the couple are separated and
living in different household but not divorced yet

self sufficient according to EEA rule: Comprehensive sickness
insurance and Sufficient fund

Yours faithfully,

Samiya




From: European Operational Policy Enquiries
Home Office

6 December 2013

Dear Samiya,


The Home Office has not published any guidance which covers the specific
scenario you describe but I will attempt to clarify how the legislation
would apply in such a case.


(..... )


In summary, the EEA national must have enough money to support themselves
and any family members claiming a right to reside through them without
needing to claim benefits; and comprehensive sickness insurance cover for
themselves and those family members. For as long as these conditions are
met, the EEA national and their family members will have a right to reside
under regulation 14 of the EEA Regulations (and would acquire the right of
permanent residence after five years’ continuous residence in compliance
with the Regulations).


(.....)




In assessing whether there are “sufficient financial resources”, the
Regulations do not specify where those resources must come from, but they
must have been legally derived. So, for example, an EEA national could
rely on financial support from their non-EEA spouse or civil partner.
However, if the EEA national is solely or mainly reliant on earnings from
the UK-based employment or self-employment of their non-EEA spouse, the
non-EEA spouse must have independent permission to work or be
self-employed in the UK (for example, leave to remain under the
Immigration Rules which allows them to work). If the non-EEA national’s
only claim to be in the UK is as the family member of a self-sufficient
person, and the self-sufficient EEA national only has sufficient resources
due to the earnings of their non-EEA family member, and that family member
does not otherwise have a right to reside or leave to remain in the UK,
this would not meet the requirement.



As stated at the outset, the precise scenario you describe (where the
couple have separated) is not covered in the EEA casework guidance.
However, there is guidance on assessing financial support from a relative
or friend in self-sufficient cases on pages 35-37 of the document entitled
‘Bulgarian and Romanian casework – yellow registration certificate’ at the
link given below. As you will see, no account will be taken of the
earnings of a sponsor if they do not have independent permission to work
in the UK. Although this document is concerned with Bulgarian and
Romanian nationals and their family members, the same principles apply to
other EEA nationals and their family members.



[1]http://www.ukba.homeoffice.gov.uk/siteco....


I hope this has clarified our position.


Kind regards,


European Operational Policy Team

Operational Policy & Rules Unit

[Jambo]

It's a chicken & egg scenario.

What the HO is saying is that you can't just be self sufficient because of the non EEA work as the non EEA national is allowed to work because you are self sufficient. So you need to have some savings (for example) for the EEA national to be self sufficient, then the non EEA can work and then it is OK to rely in that income to continue to be self sufficient.

[sheraz7]

I believe the UKBA team has given the reply based on the Romanian and Bulgarian nationals who and their family members are under restriction for employment purposes.
I do not think doing employment/self employment is always necessary because an EEA national can still become self sufficient even on the savings/accumulated funds of non-EU family members and for that purposes its access for EU national must be demonstrated.

If you are economically self-sufficient:
you need to supply evidence of comprehensive
sickness insurance for yourself and any family members included in your application. You Guidance for Making an EEA Application (Version 08/2013) - Page 3 of 8
also need to supply evidence of funds sufficient to maintain yourself and any family members
included in your application during the time you intend to reside on this basis. These funds can
come from the employment or self-employment of any of your family members legally working
and residing in the UK with you. Documentary evidence of their employment or funds should
be supplied.

[askmeplz82]

Me too agree with Sheraz.

So EEA national can't even depend on the saving of an NON EEA national according to that case worker?

consider this case

: EEA national worked in the UK lets say 2/3 years then stopped working and become self sufficient on the saving of NON EU national

and this NON EEA saving in the Bank can come from work he/she done when EEA national was working too for 2/3 years

[nemerkh]

So let me get it straight. My wife and i recently applied for another 5 yrs of eea1/2. We have a joint bank account. I (noneu) am full time employed and we live from my salary. According to the above mentioned clause by the home office we dont qualify for the sekf sufficient route??

[askmeplz82]

So let me get it straight. My wife and i recently applied for another 5 yrs of eea1/2. We have a joint bank account. I (noneu) am full time employed and we live from my salary. According to the above mentioned clause by the home office we dont qualify for the sekf sufficient route??

Like Jambo said it's Chicken or Egg case

I see this way:

Lets say the couple have joint account together and some savings in there and that savings comes from NON EEA national income when EEA national was exercising treaty right as a worker so obviously it's legal income.

And later if EEA national become self sufficient with the income from NON EEA national then that fund will still be accepted and will be considered legal income because that saving didn't start after EEA national become self sufficient

So as long as NON EEA/EEA have some funds in the account before they become self sufficient it will be accepted.

Do you agree?

[nemerkh]

Ok makes sense theoretically, in practice though when u apply for the eea1/2 you have to provide your current evidence. How will the HO be able to breakdown whose funds its is on the saving account?
In Addition to that as mentioned on the eea1/2 application for self suf,it only says that they need evidence the family member employment OR funds. So i am assuming only employment should do, therefore as long as the family member is employed and the eu national has got access thru joint account it should be fine then ?!

[askmeplz82]

Ok makes sense theoretically, in practice though when u apply for the eea1/2 you have to provide your current evidence. How will the HO be able to breakdown whose funds its is on the saving account?
In Addition to that as mentioned on the eea1/2 application for self suf,it only says that they need evidence the family member employment OR funds. So i am assuming only employment should do, therefore as long as the family member is employed and the eu national has got access thru joint account it should be fine then ?!

yes that is what it should be but home office saying fund should come from someone who have individual right to work in the UK not as a family member of the EU national.

I think that's only if EEA national apply for EEA1 as self sufficient when he/she first come to the UK and depend on NON EU national income .

example:

Ms A a german national came to the UK with her NON EU husband B. Husband B found a job with EEA family permit and then Ms A and Mr B apply for EEA1/EEA2 as self sufficient with the income from Mr B

Home Office then may not accept that Ms A self sufficient on the income of MR B because Mr B don't have individual right other then family member of an EU national

But in another example:

Ms A a german national come to the UK with her NON EU husband B
both Ms A and Mr B found job then after 6 months Ms A stop working but Mr B continue working and later they apply for EEA1/EEA2 as self sufficient with the income from Mr B

Home Office may accept now that EEA national self sufficient because part of the saving / income came from when Ms A was exercising treaty right so Mr B has right that time to work as family member of an EU national

[nemerkh]

Ok. So according to the second variant i e both worked then eu national stopped and continued in the uk as a self suff relying on noneu husbands income; when we apply for EEa1/2 you dont mention in the self sufficient section whether you were employed ir not. All they ask for is evidence of family member employment, csi , joint account etc. so considering both variants of mrs A on application it will look the same. Youll just fill out your current position in the uk. So thats what i mean; they dont specifically ask in the app you prev employment or status prior to becoming self suff

[sheraz7]

Do not be confused/confuse others from the ukba team reply over self sufficiency for Bulgarian and Romanian nationals because other member states nationals and their family donot need to have leave to remain under immigration rules for working or living. As long as EU national and their family members are not a burden on public funds then they are self sufficient with the funds they have, but eea national must be able to have access to those funds.

[nemerkh]

Ok so am a bit paranoid now actually. My wife (latvian) and i (russian-noneu) have been in the uk for 6 yrs. initially got eea as my wofe self emp. Failed our RC/PR due to lack of evidence and failed appral via solicitor. Hence at the moment i am employed, we have a joint account, we are no birden in fact the oppsoite and we sent the application for anothe eea1/2 5 yrs extention on the basis that my wife is self suff. Obvious because of the joint account my wife has access to funds. Does the HOME OFFICE quotation in this poat apply to us??

[rodzynek]

. As long as EU national and their family members are not a burden on public funds then they are self sufficient with the funds they have, but eea national must be able to have access to those funds.

Do you mean the funds must be in joint bank account?
In our case the savings and income was in non EEA family members account. to which I (EU nation) had an access.

[sheraz7]

A joint account is not necessary and if it is not joint account then access can be demonstrated if funds are regularly transferred from non-eu national account to eu national account. Otherwise the funds access to eu national cannot demonstrate which will not meet the criteria for which several threads are already available.

[rodzynek]

Thanks for you reply
So probably our application for PR will be refused as we can not prove that i had access to my husbands account.
On that other hand how can they know that money deposited to my husbands account where not my savings from time when i was working?

So confused.

Our case:

My (EU nation):
working 12.2006 till 9.2009
Maternity 9.2009 till 6.2010
Self sufficient (on my husbands income) till 9.2012
9.2012 - present Student
and from 4.1013 Self employed

[askmeplz82]

Thanks for you reply
So probably our application for PR will be refused as we can not prove that i had access to my husbands account.
On that other hand how can they know that money deposited to my husbands account where not my savings from time when i was working?

So confused.

Our case:

My (EU nation):
working 12.2006 till 9.2009
Maternity 9.2009 till 6.2010
Self sufficient (on my husbands income) till 9.2012
9.2012 - present Student
and from 4.1013 Self employed

Well joint account is not requirement but will definitely help proving that EEA have access to that fund when needed
Better then sending money to an EEA national account every months
and this days they even check how active account was
So I would recommend use that joint account while shopping

[nemerkh]

Ok so am a bit paranoid now actually. My wife (latvian) and i (russian-noneu) have been in the uk for 6 yrs. initially got eea as my wofe self emp. Failed our RC/PR due to lack of evidence and failed appral via solicitor. Hence at the moment i am employed, we have a joint account, we are no birden in fact the oppsoite and we sent the application for anothe eea1/2 5 yrs extention on the basis that my wife is self suff. Obvious because of the joint account my wife has access to funds. Does the HOME OFFICE quotation in this poat apply to us??

Could someone give me an input on the above quoted plzzz??!!

[sheraz7]

Ok so am a bit paranoid now actually. My wife (latvian) and i (russian-noneu) have been in the uk for 6 yrs. initially got eea as my wofe self emp. Failed our RC/PR due to lack of evidence and failed appral via solicitor. Hence at the moment i am employed, we have a joint account, we are no birden in fact the oppsoite and we sent the application for anothe eea1/2 5 yrs extention on the basis that my wife is self suff. Obvious because of the joint account my wife has access to funds. Does the HOME OFFICE quotation in this poat apply to us??

Could someone give me an input on the above quoted plzzz??!!

you should be fine. Apart of that you must have CSI too covering whole family.

[nemerkh]

Yes got that from axa with my, wifes and kids names on it. Fingers crossed.

[Obie]

That seem to be the position of the UKBA in regards to Self-Sufficiency.

See par 9-11 of this judgement. Presenting officers are been advised to deploy these argument at the tribunal.

This matter will get further i believe.

[nemerkh]

So as far as i understood, CSI played the most vital role in determining the self sufficiency in this case regardless. Had the husband had CSI then they probably would have won the appeal

[Obie]

CSI did played a vital role, but the position of the UKBA in regards to the source of self-sufficiency, and the fact that an EEA national cannot rely on self-sufficiency derived from employment which was made possible as a result of rights derived through that person from the regulation.

The point of that post was to state the position of the UK. Whether it will be accepted by the court may well remain to be seen. But this seem to be their changing position.

[askmeplz82]

That seem to be the position of the UKBA in regards to Self-Sufficiency.

See par 9-11 of this judgement. Presenting officers are been advised to deploy these argument at the tribunal.

This matter will get further i believe.

10. Mr Deller put his argument in the following way. The basis upon which the appellant would have been entitled to work was that she was the family member of a person exercising treaty rights. If the appellant was not working (as found by Judge Amin on the evidence before him) then unless he was exercising treaty rights in some other way, such as by establishing that he was self-sufficient, the appellant would not be the family member of a person exercising treaty rights. Accordingly she could not lawfully work. If she could not lawfully work, then her income should not be taken into account when assessing whether or not her husband was "self-sufficient". As he put it, the appellant was relying on a circular argument but could not be allowed to rely on what the courts had previously referred to as "impermissible circularity". Without the benefit of the income which was derived from the appellant's working, her husband would not be self-sufficient, and so this income could not be relied upon.

--------------------------------------------------------------------------------

Obie what if the Couple have sufficient fund in the Bank Account on the day EEA national started exercising treaty right as self sufficient

( past NON EEA national income when EEA national was exercising treaty right as worker )

[nemerkh]

If say they have a saving account jointly then how will the ukba find out where the money is coming from? How would they deem that illegal?

[Obie]

UKBA will need to be showed the source of the Self-Sufficiency.

If it came from a non- EEA national without a right of residence, that may be considered illegal.

[nemerkh]

17. Accordingly, as is accepted on behalf of both parties, if during the period when he was not working, and not seeking work, the appellant's husband was "self-sufficient" he would still be exercising treaty rights in this country. However, as I pointed out to the parties during the course of the hearing, under Regulation 4(1) a "self-sufficient person" is defined as follows:
"4-(1) In these Regulations - ?
(c) 'Self-sufficient person' means a person who has -
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom."


Sufficient resources as above are defining self sufficiency, but its not specified anywhere what sufficient resources are. On the application :
Economically self-sufficient
Evidence of comprehensive sickness insurance and funds sufficient to maintain yourself and any family members included in this application during the time you intend to reside on this basis. These funds can come from the employment or self-employment of any of your family members residing in the UK with you. Documentary evidence of their employment or funds should be supplied. Evidence that you are in receipt of a pension if you are retired.

Hence on the application THESE FUNDS CAN COME FROM THE EMPL OF ANY FAMILY MEMBER (ie Noneu) residing with you- shows that it doesnt matter what the eea member done prior to self suff and it doesnt say that u have to have another funds other than the ones earned by the noneea family member.