vahidfar wrote: ↑Fri Sep 28, 2018 11:06 am
I thought about applying for the permanent residence now and later replace it with the settled status, however 3 years out of the last 5 years, my wife has been student and although she's been working part-time, I think she would not pass the NI threshold test so I think we will face the lack of "Comprehensive Sickness Insurance" issue .So in my opinion my application for permanent residence could be rejected and that was the main reason I decided to just wait for the settled status.
Vahidfar, last post on this!
At the risk of contradicting other advice - I think you may have a case for applying for DCPR now, with your wife as a qualified person (worker).
Part-time work below the NI threshold could count as exercising treaty rights, so long as it is not what the HO call "marginal or supplementary" work.
How many hours a week does your wife work? Does she have P60s for the years she was working
full-time and part-time, and/or does she have pay-slips?
I was looking at the criteria for qualified persons earlier - look at p.11-12 of the internal HO guidance document for HO staff:
https://assets.publishing.service.gov.u ... s-v5.0.pdf
Workers
"A worker is an EEA national who is exercising their free movement rights in the UK by working in paid employment on a full-time or part-time basis."
"Assessing whether the EEA national is a worker
While there is no minimum amount of hours which an EEA national must be employed for in order to qualify as a worker, the employment must be genuine and effective and not marginal or supplementary.
[...]
Marginal means the work involves so little time and money that it is unrelated to the lifestyle of the worker. It is supplementary because the worker is clearly spending most of their time on something else, not work."
Look also at the Case Examples on p.13:
"Case example 1
Mr A is a Spanish national and has recently started work on a construction site for 20 hours each week and earns £250 each week. He provides evidence of a contract of employment and bank statements showing funds regularly entering his account. He has recently registered with HMRC for tax purposes. In this scenario, it is more likely than not that Mr A is a genuine worker."
To avoid confusion on the application - when it asks if she's been a student, answer 'No', and then include
a covering letter in your application, where you explain that she was a student at institution x during the
time xy, but that given you're applying to exercise treaty rights as the husband of a worker, this is
irrelevant to the application and therefore you've answered 'No' on the form. That's what I did in my EEA (PR) application - I was a full-time worker but studying part-time for a Postgraduate Diploma, but I
answered 'No' when they asked if I was a student as I was applying as a worker.
So, provided your wife was doing genuine work during those years that she was working part-time and you have the docs to prove it, and provided you're diligent in doing your application - I think you could try to apply for DCPR now, and then exchange the PR card for the Settled Status card next year. Worst case, you'll have lost £65 and you'll need to re-apply. That's probably better than the uncertainty of those 2-3 months gap, and who knows - you may be successful...
