EEA3 application, CSI and Ordinary Resident????

Dear All,

Having had a look at the new PR form I can't help but say that I am quite puzzled (to say the least) and I am hoping you would be so kind and help me out ...

I am a EU-nation and came to the UK on August 1st 2006. First I was self-employed but took up employment with a very large UK retailer in October 2006 up and until May 2008 (all documented by letter from employer). From June 2008 until May 2009 I lived - free of charge and based on donation only - as "self-sufficient' resident in a monastery in the north of England. Having left the monastery again in May 2009 (at the height of the recession) I was able to claim JSA-contribution based until I found a job in July 2009. With the job having been a disaster (very chaotic removal company) I became unemployed again in November 2009 and continued to claim contribution-based JSA until 7th of February 2010.

From the 8th of February until end of February 2013 I studied (full-time) to become a nurse. In March 2013 I was self-sufficient for a months again before I started my new job as Staff Nurse in April 2013. I have worked as Staff Nurse (employed by the NHS first and now as self-employed agency nurse) continuously since April 8th 2013.

I was just in the process of applying for the PR based on in excess of 5 years of continuous residence in the UK (May 2009 until April 2015) only to find that I am being asked to provide CSI for the time as self-sufficient student (tuition fee was paid for by the NHS/government, we were given a small bursary, I had a few savings and my parents made up the rest).

In your opinion, will it be necessary for me to drop my application because I didn't have the CSI for the 3 years at uni (2010 - 2013)?

I have been under the impression that I can state that I have been an "ordinary resident" in the UK since August 2006, that I passed the Habitual Residency Test prior to being able to claim JSA and, last but not least, I was only accepted at university (with the tuition fee and bursary paid for by the NHS/government) after I had provided evidence of having lived permanently in the country for 3 years prior to commencing the course.

Your help would be very much appreciated.

Kind regards, TJW

The free movement Directive defines how PR status can be attained, so it is an EU law issue, one in which ordinary residence has no relevance because that is a domestic issue. EU rules are clear about EEA students - they must have CSI whilst exercising Treaty rights as students if they wish to attain PR status. If you were involuntarily unemployed from your removals job, you could possibly argue that you kept worker status throughout the period afterwards of jobseeking and then entering a vocational course unrelated to your previous job, although not sure how successful you'd be with that argument but it could be worth arguing it in appeal court. However if you left your removals job voluntarily then I would say your PR clock only started ticking again since April 8th 2013.

Thank you very much for your reply.

Would you know any decision, etc. I could possibly refer to in an appeal if I was going to go down the route of retaining my worker status?

With regards to my removals job I, one fine Monday morning, was denied access to the office and told that I "no longer worked for them" ... (as said above, the company was the most chaotic bunch I've ever met/worked for). I filed for 'unfair dismissal' with the Employment Tribunal (including ACAS, etc.) straight away but my claim was subsequently dismissed by the Tribunal because I had worked for them only for less than 12 months, which apparently means that one can not claim unfair dismissal. I got masses of paperwork regarding this.

So in the end, I did exactly what you stated as possible route to retain my right as worker:

1) signed up for contribution based JSA again,
2) tried to find a job (at the height of the recession)
3) picked up a copy of the Evening Standard and found out about an 'open event' at the university on a Saturday,
4) attended the 'open event'
5) passed all the tests and interview
6) was offered the place as student the following Tuesday and
7) started the 3-year-course 2 weeks later ...

I qualified as DipHE with distinction, started, as said, to work as Nurse on April 8th 2013, continued with a BSc (Hons) Top-Up which I was awarded a '1st Class' degree, worked as Nurse ever since and - based on my past academic achievements - have been accepted straight away for a 2 year PgDip as Physician Associate (starting in September this year).

In the end, my private life has turned out to be rather successful (sorry I didn't mean to show off) but I struggle to understand why the fact that I did not have CSI is now a problem despite the fact that I successfully passed all the habitual residence tests for JSA and the course at university ...

Thanks a lot. TJW

It looks like you could possibly argue retention of worker status since you were involuntarily unemployed and became a jobseeker afterwards and then embarked on a vocational course. The relevant UK legislation to cover that can be found under Regulation 6 of the Immigration ( EEA) Regulations. This legislation comes from the transposition of the free movement Directive, namely Article 7(3) of Directive 2004/38/EC.

Glad things turned around for you.

Thank you ever so much for your help and the info provided, which I very much indeed appreciate.

The question now, however, is if a DipHE undergraduate course at a university classifies as 'vocational training'?

Hope you're alright and well.

You're welcome. I would say a nursing course is vocational training. I'm not sure how it could be argued otherwise. Good luck.

Hello,
There's one more thing I thought I quickly ask.

I completed my 3-year course at university in February 2013 (the official last day, I think, was the 28th) but started my job as nurse on the 8th of April 2013.

So there is a gap of about 5 weeks between finishing my course and starting my new job.

I did not bother signing up for JSA because I had the job lined up already prior to me finishing the course.

In detail, to study nursing one takes a couple of weeks of theory which is followed by a couple of weeks of clinical placement.

During one clinical placement (in my second year of study) I was on the Acute Medical Unit (AMU) of a hospital, let's call it hospital A. At the end of this placement the ward manager of this AMU gave me a reference and, as part of it, offered me a job as nurse after I qualified. My last placement of year 3 (winter 2012) was again at the AMU of hospital A (as everybody on the AMU and at university knew I was going to work for them anyway). During this last placement I was offered the job and the official application process - which is a very slow and sometimes painstaking administrative process - was initiated.

Once qualified I had to wait for my registration with the regulatory body (Nursing and Midwifery Council) to be activated, etc. just as I had to wait for HR to clear my references, occupational health, etc. however, it has always been certain that I would work for them. Finally I was given that the April intake of new staff (they only take new staff on on e a months) would commence their induction week on April 8th 2013.

I did not bother signing up for JSA after I finished uni and before starting my job because:

A) I had a job lined up and
B) therefore would have not fulfilled the criteria of being available for work and actively looking for work.

Signing up for JSA to bridge the gap would have meNt to rip-off the system and. Taking advantage.

Would you think that these couple of weeks are now posing a problem for the 5 years continuous residency requirement.

Thanks a lot, as a always, your help is very much indeed appreciated.

Tjw

I don't know how the Home Office will view it because the rule is, as you know, that you must register with an unemployment office to retain worker status after being involuntarily unemployed. I guess it depends on the caseworker you get. It's normal to not be able to start a job straightaway after receiving a job offer, so I suppose you could possibly argue the proportionality principle. If you get a reasonable caseworker, you would probably be ok. On the safe side in future, it's always best to get CSI in between jobs if you do not register with the jobcentre.

Thanks a lot for your reply and information. I am however, not sure if I fully understand the two principles of proportionality and subsidiarity.

Under proportionality it states that:

"Under this rule, the involvement of the institutions must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the content and form of the action must be in keeping with the aim pursued."

Am I right in interpreting the above as "the UKVI has to work with me rather then against me and therefore rule in favour of the PR rather than against it".

I'm lost with regards to the meaning and applicability of the subsidiary principle ...

Thanks, TJW

Accordance with the proportionality principle does not mean that UKVI have to work with you. Simply put, it just means they have to be proportionate in the way they assess your case and look at whether overall your activity met the objectives of the Directive. In your case you had just a short 5 week gap between finishing your course and starting your job for which you had a firm job offer. So it could be argued you remained economically active even if you had not registered at the jobcentre. Plus it was only a short gap in 5 years of continuous exercising of Treaty rights, a gap in which you remained economically active. So for all intents and purposes you met the objectives of the Directive. If the caseworker were being proportionate, they would consider that.

Thank you, very much appreciated.

I've been wondering if there is a legislation stating that there "must not be a gap" and that the transition periods have to be seamlessly covered ... ?

in case there is no such legislation and/or regulation wouldn't it be possible to argue that the absence of it means that a gap would not detrimentally affect/impact ...

Thanks, hope you're alright and well and have a nice weekend ahead.

The EEA Regulations have nothing to say about gaps. There are a few UK cases that I found that talk about gaps but in different situations to yours, mentioned in the last page of this document. If you read up on those cases, paragraph 13 of this one and paragraph 15 of this one, the underlying theme seems to be that if you don't break the link with the labour market, which you don't with short gaps between working and jobseeking, you retain worker status. Although your situation is different, you possibly have an argument to say that a short gap in your case did not break the link with the labour market.

If your caseworker disputes your right to switch from one situation of worker status to another, in your case from jobseeker to vocational training, you could try using paragraph 34 taken from this Upper Tribunal case to persuade them if it will do any good.

Once again, thank you very much indeed.

I will continue and go ahead with the application for PR now and, if necessary, challenge the UKVI in case they decide against it.

One more thing (although only minor).

Would you include all the information available and provided to me in this forum, for example, reference to the legislation dealing with me having retained worker status due to involuntary dismissal when I went to university and the reference to the legislation of me being able to bridge the gap between uni and employment as nurse ... Almost as, sort of, ' preemptive strike' or would you say I should only provide the UKVI with the minimum of facts, wait and see what happens and use the references in a potential appeal ....

Thanks a lot for your time, help and support.

TJW

I think it's best to apply with the minimum of facts and only go into more depth in a reconsideration request if they refuse you. I might write about the facts and then include only a sentence like "and therefore as I understand it under the EEA Regulations I kept my worker status because I went into vocational training after my dismissal". But I wouldn't go into any more details than that.

Good, very good, I shall do so and shall only briefly mention the proportionality legislation, etc. with regards to the 5 weeks gap between university and work as a side note.

I feel I am very close to having enough information now to proceed.

To wrap things up and for my own peace of mind, however, I thought I ask if I should be worried about having been an "illegal' immigrant for the time when I was at university from 2010 until I started to work on 8th of April 2013.

There is information floating about saying that for EU-nationals to be lawfully in the country as students they must have CSI.

Interestingly enough, nobody from the university at which I studied from 2010 - 2013 told me (and a lot of other EU students) that we needed such insurance and when I contacted the university at which I will commence my course in September this year I was told that I won't need a CSI due to the fact that I am an EU national?

I will, obviously, make sure I have either CSI for the upcoming study or maintain my status as worker to avoid the need of having to have one, but the question is regarding my time between 2010 and 2013? Maybe I'm paranoid?

Thanks, TJW

I would not draw attention to short gaps as sometimes caseworkers can overlook things by mistake. If it were me I would simply write in a cover letter that I was a worker who was made involuntarily unemployed and embarked on vocational training, after which I started a job, and that as I understand it I retained worker status.

You were not an "illegal" immigrant in a strict sense as Member States cannot expel EEA nationals unless it's a matter of public policy/security, or the EEA national is an unreasonable burden on the state although even then Member States must consider how long the EEA national has been living in the country and whether there are extenuating cirumstances. All that matters is that an EEA national is presently exercising Treaty rights to have a right of residence in his host country; it is immaterial what went on before.

If you do get your PR card, do update this thread and let us know, as it'd be interesting to know.

It will take a few more weeks before I can submit my application as I've realised that I need to do one more trip for which I need my passport - but I most certainly keep this thread updated on the progress of the matter.

Thank you very, very much indeed for your time, help and support.

Hello,
As I am coming to an end with the application I have just realised a couple of things and thought you would be so kind again to provide me with your help and expertise:

1.) As previously mentioned I work as self-employed nurse with my own limited company (director and sole employee).

- Working with an accountant I have just realised that I pay myself not enough monthly wage to come within the threshold to pay national insurance contributions.
- in addition to the £672 wage per months I draw a dividend from the company (which is not subject to any national insurance contributions).

Will the above have an effect on my 'qualified time' for the 5 year necessary for the permanent residency card?

2.) How long is a permanent residency card 'valid' these days?

I am, as said, almost done with my application and all I am waiting for is a few more documents. I then will have to do one more trip and reckon I will be able to send the application off end of June.

Thank you very much for your help.

Though the Home Office would disagree, under case law it's not about your earnings but more about looking at the whole package to determine whether your work is genuine and effective. So for example you could work a very low amount of hours but if you've had a lengthy employment with a contract and sick/annual leave, this would suggest genuine and effective work. In any case the Home Office considers if you earn £150 per week, your work is automtically genuine and effective.

Hi, me again, long time no speak, hope you are alright and well.

I posted my PR application end of February and last week received the bad news that my application was refused. The HO does acknowledge that I "have been resident in the UK for 10 years" but also states that I did not fulfil the requirements of continuous period of 5 years.

As stated above I was made involuntarily redundant in November 2009 (from a removal company) and started my DipHE in Adult Nursing in February 2010. Because of the involuntary redundancy I thought I retained my worker status (not needing Comprehensive Sickness Insurance which I didn't know of at the time) due to the fact that I was embarking on vocational training which permanently will secure me a job.

However, this was disputed by the HO and they argue that "a 3 year degree course qualifies as 'vocational training' in this instance. Notwithstanding this , even if it was accepted that as the degree was specific to nursing that this was considered vocational training, Regulation 6(7) and (8) further specifies that:

(7) A person may not retain the status of a worker pursuant to paragraph (2) (b), … for longer than "the relevant period" unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

(8) … "the relevant period" means ..
(a) in the case of … retaining worker status … a continuous period of six months.
(b) in the case of a jobseeker 391 days

It is considered that having undertaken a full time degree course over a period of 3 years that not at the same time continuing to seek employment, instead studying full time with a view to then seeking employment on completion of [my] studies.

For [my] circumstances the Secretary of State is not satisfied that retained [my] rights as a worker for a period of 3 years and that considered to be a student … [and] that would have to have held comprehensive sickness insurance for the entire duration of [my] studies.

- Towards the end of my studies I was offered employment as Staff Nurse in December 2012. I qualified as Staff Nurse end of February 2013, but had to wait for a) my NMC registration to be completed and b) based on my registration with the NMC being completed for the employing NHS trust to confirm a start-date. With the employing trust only having induction weeks once a months I did not physically commence my employment until the 8th of April 2013.

I spend the time between the end of February 2013 and the 8th of April 2013 visiting friends, taking a holiday and preparing myself for my upcoming employment.

However, the HO notes "the offer of employment in December 2012, however, … that did not physically commence this employment until April 2013 and it is at this point, that we have determined as the starting point for [me] to be considered as exercising [my] treatment rights.

My question: Is there any point of me appealing the decision or should I just hope the potential Brexit-outcome of the EU referendum will not take effect until the 8th of April 2018.

Thank you very much for your time, help and support.

It's a longshot (and may not be enough to plug any other gaps in your timeline) but back to question of CSI:
Did you ever have a foreign-issued EHIC when a student ?

Or did you have a UK RC issued to you as a student in/before 2011?

If so your student period may be classed as exercising treaty rights.

Dear All,

I posted my PR application end of February and last week received the bad news that my application was refused. The HO does acknowledge that I "have been resident in the UK for 10 years" but also states that I did not fulfil the requirements of continuous period of 5 years.

Long story short, i was made involuntarily redundant in November 2009 (from a removal company) and started my DipHE in Adult Nursing in February 2010. Because of the involuntary redundancy I thought I retained my worker status (not needing Comprehensive Sickness Insurance which I didn't know of at the time) due to the fact that I was embarking on vocational training which permanently will secure me a job in the UK (given the current shortage of nurses and with there not being any signs of it changing in the future).

However, this was disputed by the HO and they argue that

"a 3 year degree course [does not] qualify as 'vocational training' in this instance. Notwithstanding this , even if it was accepted that the degree was specific to nursing that this was considered vocational training, Regulation 6(7) and (8) further specifies that:

(7) A person may not retain the status of a worker pursuant to paragraph (2) (b), … for longer than "the relevant period" unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

(8) … "the relevant period" means ..
(a) in the case of … retaining worker status … a continuous period of six months.
(b) in the case of a jobseeker 391 days

It is considered that having undertaken a full time degree course over a period of 3 years that not at the same time continuing to seek employment, instead studying full time with a view to then seeking employment on completion of [my] studies.

For [my] circumstances the Secretary of State is not satisfied that retained [my] rights as a worker for a period of 3 years and that considered to be a student … [and] that would have to have held comprehensive sickness insurance for the entire duration of [my] studies.



- Towards the end of my studies I was offered employment as Staff Nurse in December 2012. I qualified as Staff Nurse end of February 2013, but had to wait for a) my NMC registration to be completed and b) based on my registration with the NMC being completed for the employing NHS trust to confirm a start-date. With the employing NHS trust only holding induction weeks once a months I did not physically commence my employment until the 8th of April 2013.

I spend the time between the end of February 2013 and the 8th of April 2013 visiting friends, taking a holiday and preparing myself for my upcoming employment.

The HO notes with regards to this that:

"the offer of employment [was made] in December 2012, however, … that did not physically commence this employment until April 2013 and it is at this point, that [they] have determined as the starting point for [me] to be considered as exercising [my] treatment rights.


My question: Is there any point of me appealing the decision or should I just hope the potential Brexit-outcome of the EU referendum will not take effect until the 8th of April 2018?

Thank you very much for your time, help and support.

noajthan wrote:It's a longshot (and may not be enough to plug any other gaps in your timeline) but back to question of CSI:
Did you ever have a foreign-issued EHIC when a student ?

Or did you have a UK RC issued to you as a student in/before 2011?

If so your student period may be classed as exercising treaty rights.

So have you explored question of alternatives to CSI?

And have you researched case law on vocational training?

For example worker status can be retained indefinitely due to medical reasons.

The question is how long can vocational training run for (regardless of HO guidance which is not necessarily the law).