Does a stay-at-home non-EEA spouse need sickness insurance?

I am a dual British-EU citizen (naturalized British). I came to the UK as a worker but later become incapacitated due to health problems. I obtained Permanent Residence under EU rules, then applied for British citizenship. I claim different disability benefits and don't work.

My non-EEA wife joined me in the UK and she has been here for 5 years with an EEA Family Member Residence Card. She has never worked, and apart from a short English course never studied in the UK. Basically she doesn't fit into any of the "exercising treaty rights" categories (worker•student•self-employed person•self-sufficient person•retired person•person who was incapacitated). She is my carer and claims Carer's Allowance. We have a British-born child and my wife gets the Child Benefit. She has never had a comprehensive sickness insurance.

In my understanding, it is the EEA citizen and not his non-EEA family member who must exercise treaty rights. I qualify under these criteria either as a worker or incpacitated person. However, the Naturalization Guide is worded in such a way that it may suggest that Home Office requires that the family members also should exercise treaty rights.

My wife is going to apply now for settled status and then for British citizenship. However, I am worried that her citizenship application might be turned down because she has never had comprehensive sickness insurance, and Home Office might say she was not lawfully resident.

I would appreciate your insight and guidance. Thanks a lot.

pochaco wrote: ↑

Fri Aug 21, 2020 11:48 am

In my understanding, it is the EEA citizen and not his non-EEA family member who must exercise treaty rights.

Your understanding is correct.

I qualify under these criteria either as a worker or incpacitated person. However, the Naturalization Guide is worded in such a way that it may suggest that Home Office requires that the family members also should exercise treaty rights.

That's strange. Can you point to the document you are referring?

I am worried that her citizenship application might be turned down because she has never had comprehensive sickness insurance, and Home Office might say she was not lawfully resident.

That should not be the case. Again, can you point towards the exact wording that makes you think the HO might say this?

It's rather the spirit than the exact wording that makes me concerned. But see this, for instance:

https://assets.publishing.service.gov.u ... uly_20.pdf

You must also provide evidence that you were in the UK lawfully during your 3 or 5 year residence period. This includes meeting any additional requirements, such as having comprehensive sickness insurance if you needed it. We will still requestthis information even if you have been granted indefinite leave to enter or remain (“settled status”) under the EU Settlement Scheme.When applying for British citizenship, you should demonstrate that you were in the UK lawfully as an EU, other EEA or Swiss national, or their family member prior to any grant of pre-settled or settled status. The EEA Regulations specifythatto be lawfully resident here, you must be undertaking permitted activity asa: •worker•student•self-employed person•self-sufficient person•retired person•person who was incapacitated

Our case is quite complicated and very easy to mess it up.

Do not worry. That document could benefit from some improvement on the wording.

You are being very meticulous and mathematic in the interpretation of what it's written, as everyone should be, and you are right to raise your concerns. Simply put, instead of:

The EEA Regulations specify that to be lawfully resident here, you must be undertaking permitted activity as a:
• worker
• student
• self-employed person
• self-sufficient person
• retired person
• person who was incapacitated

That paragraph should say:

The EEA Regulations specify that to be lawfully resident here, you, or if you are a non-EU family member, your EU family member, must be undertaking permitted activity as a:
• worker
• student
• self-employed person
• self-sufficient person
• retired person
• person who was incapacitated

This is because the paragraph above is simply paraphrasing EEA regulation, which we know imposes the above requirements for EU nationals, but not for their family members.

This is an example of a known erroneous approach of documents written by the Home Office. It is mixing up two separate publics with different requirements (EU nationals, and non-EU family members of EU nationals) and treating them as if they were only one. The effect is similar to how the EUSS website misleads non-EU family members into thinking they only need to show residence in the UK for 5 years to be granted Settled Status, without clarifying that's the requirement for EU nationals, not their non-EU family members. For non-EU family members there is an additional requirement to show they have been the family member of a EU national thought those 5 years. None of this is specified.

Your interpretation is correct, and your wife does not need to show any type of exercise of treaty rights, since that simply does not apply to non-EU nationals.

Brilliant. Thanks for your help.