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EEA3 Application – CSI needed as funded PhD student?

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

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Sylviaucl
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EEA3 Application – CSI needed as funded PhD student?

Post by Sylviaucl » Wed Oct 26, 2011 9:33 am

We need some help…

I am non-EEA and my husband is from Portugal. He came here Jan 2005 and started his PhD (funded by EPSRC). He submitted his final thesis Jun 2009 and started working from the same month until now.

Since he has been in the UK for over 6 years now, he’d like to apply for EEA3. This is also because we have our baby on the way and we think if he gets his PR before the bb is born it would be easier to get the British Nationality for the bb.

As a summary:

01/2005 – 06/2009: PhD student (EPSRC funded)
06/2009 – Now: Worker

Now our problem is that during his time spent as a PhD student we cannot provide evidence of the Comprehensive Sickness Insurance (CSI) simply because back then nobody’s ever heard about it! I am myself a funded PhD student here from non-EU and even I was told I had access to the NHS, so why should we have sought for any other health care? Plus as funded PhDs we were covered by travel insurance whenever we travel abroad for work.

However going through the caseworker guidelines I feel his chance of getting PR is slim. The only positive thing is that I applied for EEA2 as his spouse and received it 05/2009. Back then he was still a student, who’s just got his job offer. Will this help his application? (I.e., I have a RC as his spouse before June 2011)

Also as his PhD was funded by EPSRC (British Research Council), can we argue base on that?

We have also considered if he was covered by some Portuguese health insurance and found that as a student in Portugal you are covered, however they consider PhD students as workers…

We are very confused and frustrated…any suggestion/advice is more than welcome!

Thanks!!

seputus
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Post by seputus » Wed Oct 26, 2011 5:52 pm

I've wondered about this as well (being covered by NHS but still expected to have CSI if not working) ... I think it's just because they see it as tugging at the UK purse, so while you may be entitled to it, for PR purposes they're not going to allow us non-UK citizens to get away with it if we're not funding the NHS.

Anyway, that's not really helpful to you. Hopefully someone else can give some actual guidance.

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Wed Oct 26, 2011 6:43 pm

Technically your husband should have had comprehensive sickness insurance throughout his time here to benefit from treaty rights.

Your husband may get away without this requirement if he applied for a residence certificate before June 20th 2011. This comes from chapter 6 Annex B of Permanent Residence cards. See the link here.
http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

The source of funds for your or your husband's studies is not relevant.

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Wed Oct 26, 2011 8:44 pm

If your husband has an EHIC card from Portugal that covers him and likely you for the duration of studies, then that should be OK

fysicus
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Post by fysicus » Wed Oct 26, 2011 8:48 pm

In many countries children inherit the nationality of their parents automatically, regardless of the place of birth. I don't know if that is also the case for Portugal or for your own country of origin. You have to check that and maybe the baby has already dual nationality at birth.

When you and your husband acquire PR after a few years, it is still possible to register your child as a British Citizen without any problem.

For Portuguese nationals (or nationals from any other EU country) there is no real benefit to have British nationality as well. I wouldn't bother about it, to be honest.

If as a PhD student your husband received a salary (either from the university or from EPSRC directly), subject to tax and National Insurance then he should be regarded as a worker (meaning no CSI required) during that period as well. That is very different from an undergraduate student who has to pay tuition fees and does not get any money from the university.
Of course he can simply apply via EEA3 and see what happens. The worst what can happen is that it is rejected and then nothing changes in your situation for now.

Sylviaucl
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Post by Sylviaucl » Thu Oct 27, 2011 4:35 pm

Thanks everybody! These answers were really helpful!!

I applied for EEA2 in 2009, but my husband did not get a EEA1 (RC). So I guess this won't help much.

He has a EHIC card but was issued by the UK, as from our understanding when applying, any British *Resident* are entitled to one.

We are probably going to give up on this and apply for PR together in 2014, which is 5 years from he started working here. Hopefully the regulation won't change much!

Thanks again for all your help!!

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Thu Oct 27, 2011 7:16 pm

Technically you could argue that your husband did apply for an EE1. They would not have issued you with an EEA2 unless he qualified for an EE1.

I would check out Portuguese nationality rules if I were you. Was your husband born in Portugal; that might also be relevant to your child?

Sylviaucl
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Post by Sylviaucl » Thu Oct 27, 2011 9:54 pm

EUsmileWEallsmile wrote:Technically you could argue that your husband did apply for an EE1. They would not have issued you with an EEA2 unless he qualified for an EE1.

I would check out Portuguese nationality rules if I were you. Was your husband born in Portugal; that might also be relevant to your child?
Yes, the child could have Portuguese nationality. But originally we would also like to get him/her British nationality as we live in the UK.

Thanks for your reply, I think the point you made about EEA1 is very important!!

mimine30
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Post by mimine30 » Thu Nov 03, 2011 1:18 pm

we been through the same things , after a lot a lot arguments and doubts we found the best solution is to purchase a csi the cheapest one and it will be straight forward ,you can always cancel it any time you want

my advice is simple buy a cheap csi and then apply

if you want more detatils just pm me or email me at honnete24@hotmail.com
will be more than happy to help
good luck

Gyfrinachgar
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Post by Gyfrinachgar » Thu Nov 10, 2011 3:59 pm

mimine30 wrote:my advice is simple buy a cheap csi and then apply
Yes, BUT under treaty rights you can only apply 5 years from the date you signed that cheap csi. As I learned myself the hard way, you must have csi throughout the entire duration of your studies. One break, and you start from scratch.


Sylviaucl, you could try to get an official letter/document (from the Portuguese health department for example) stating that you were covered under Portuguese health insurance. That might convince Home Office. Otherwise, I am afraid that if you have no evidence of csi before 06/2009, you will have to wait until 06/2014.

I was a PhD student myself and hence in that very situation. Problem is you do not consider these things when you start your PhD - especially as you get monthly payments and are entitled to the NHS. That is a bit schizophrenic in my eyes ("yes, you do have csi - no, we do not accept it for immigration purposes"), but that is the law. Fortunately I worked it out in the end, but I wish someone would have told me earlier, would have saved me unnecessary postage and frustration. Anyway, best of luck!

fysicus
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Post by fysicus » Thu Nov 10, 2011 4:34 pm

Gyfrinachgar wrote:I was a PhD student myself and hence in that very situation. Problem is you do not consider these things when you start your PhD - especially as you get monthly payments and are entitled to the NHS. That is a bit schizophrenic in my eyes ("yes, you do have csi - no, we do not accept it for immigration purposes"), but that is the law. Fortunately I worked it out in the end, but I wish someone would have told me earlier, would have saved me unnecessary postage and frustration. Anyway, best of luck!
If you get monthly payments which are subject to Income Tax and National Insurance, that means you are a worker (and not a student) as far as Directive 2004/38 is concerned. Your job title may have the word student in it, but that is irrelevant.
I mentioned this earlier in this thread, and this is what Sylviaucl first of all must verify explicitly.

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Post by Gyfrinachgar » Thu Nov 10, 2011 4:37 pm

fysicus wrote:If you get monthly payments which are subject to Income Tax and National Insurance, that means you are a worker (and not a student) as far as Directive 2004/38 is concerned.
Yes, but bursaries are NOT subject to taxes, and unless I am gravely mistaken, EPSRC postgrad funding is a bursary. Granted, if you work at the same time, you do not need to worry about csi as you can claim treaty rights either as student or as worker (the latter making more sense), but this does not seem to be the case here.

fysicus
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Post by fysicus » Thu Nov 10, 2011 4:59 pm

I don't see how bursaries can be kept outside the tax and NI system. May be you are not required to file a tax return, but whatever EPSRC or a similar body pays you will somehow be reported to HMRC.

Sylviaucl's husband can simply phone the tax office and ask for a printout of his tax calculations for the last six years to be sent to him. I'm pretty sure the EPSRC grant will not be mentioned there explicitly but hidden in the general category "Income from employment". Send that to UKBA and bingo!

And Gyfrinachgar can of course do the same, just out of curiosity as it is too late for him to benefit from it now.

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Post by Gyfrinachgar » Thu Nov 10, 2011 5:06 pm

fysicus wrote:I don't see how bursaries can be kept outside the tax and NI system.
Scholarships/bursaries received by a student in full-time university education, are exempted from income tax; unless the bursary exceeds £15,000. Source: Her Majesty's Revenue and Custom - Statement of Practice 4/86 - Section 776 IT(TOI)A.

Hence, the vast majority of PhD students receiving bursaries are NOT considered workers despite being on a contract and receiving a monthly payments and have therefore supply evidence of csi.
Last edited by Gyfrinachgar on Thu Nov 10, 2011 5:10 pm, edited 1 time in total.

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Thu Nov 10, 2011 5:09 pm

Gyfrinachgar wrote:
fysicus wrote:I don't see how bursaries can be kept outside the tax and NI system.
Scholarships/bursaries received by a student in full-time university education, are exempted from income tax. See Her Majesty's Revenue and Custom - Statement of Practice 4/86 - Section 776 IT(TOI)A.

Hence, we are NOT considered workers.
Are you really really sure?

Just because it is exempt from Income Tax does NOT necessarily mean that it is not compensation for being a worker.

Gyfrinachgar
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Post by Gyfrinachgar » Thu Nov 10, 2011 5:18 pm

Directive/2004/38/EC wrote:Are you really really sure?
To the best of my knowledge, yes. On what basis would you argue that a person has been a worker rather than a student, if that person did not pay taxes but was enrolled on a university course ending with a university degree?

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Post by fysicus » Fri Nov 11, 2011 7:56 am

The payment you receive is directly linked to your activity, hence you are a worker. End of story.

A PhD student is not enrolled in a university course, but has an individual program, most of which is research work. You have to apply for such position and you can be dismissed.

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Post by Gyfrinachgar » Fri Nov 11, 2011 8:37 am

fysicus wrote:The payment you receive is directly linked to your activity, hence you are a worker. End of story.
No, unfortunately it is not that simple. A bursary is linked to a scholary activity, a studentship. The only difference to a normal student is: a normal student has to pay fees to cover the costs for the research at the university, while a bursary student does research that is so important that he/she gets tax-free money to support that research. That does not change the status as a student, the programme is still exactly the same in all aspects.
You have to apply for such position and you can be dismissed.
You also have to apply for any other university programme (BSc, MSc, MBA, ...) and can be dismissed by the university. That means nothing.
A PhD student is not enrolled in a university course
Yes he/she is. Trust me, I know. I was a PhD bursary student myself. Been there, done that! I, like all my fellow students, was enrolled in a PhD programme and considered a student - despite the better financial standing, the vast autonomy and other privileges we enjoyed compared to other degree courses. I even have that in writing - why do you not believe me?



A PhD student is enrolled, that is a fact. The PhD bursary student gets regular payments (usually by the university, or a research council as in Sylviaucl's case), but these are not subject to taxes, as demonstrated above. Personally, I see no grounds to claim treaty rights as 'worker' for that period. Do you have any shred of evidence that supports your point of view? If so, please let me know, that would be great - I could help some people with that knowledge.

fysicus
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Post by fysicus » Fri Nov 11, 2011 11:17 am

You fix yourself on the wording used in a university context, but the essential thing is being paid for what you do; in very sharp contrast with a (what you call normal) student who pays tuition fees.

Why should you take "No" from UKBA for an answer? Appeal at the AIT and use all the arguments I mentioned in this thread. At some point there will be a judge who has common sense and looks at the factual situation rather than at the words used to describe it.

If such a case would reach the ECJ I have no doubts about the outcome.

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Post by Gyfrinachgar » Fri Nov 11, 2011 1:39 pm

My my, appeals (up to the European Court of Justice no less) over a few years is overkill in my eyes, but if the cap fits, why not. Fortunately, I found a less extreme path for myself at the time.

In any case, trying to claim treaty rights as worker might prove very interesting and also provide valuable information for latter cases here. Personally, I see no harm in trying.

Sylviaucl, if you want to try that your husband needs to declare the whole period as being a worker. He will also need evidence of regular payments. Since bursaries are outside the tax system, bursary students do not get P60s. This might be a bit of a problem, but there are always some ways to prove payments.

Anyway, I am doubtful - albeit curious - about the success probabilities of this course. Therefore, I strongly recommend that while your form is away and awaiting decision, you nevertheless endeavour to get some evidence of csi from Portugal, if your husband has indeed been eligible there. If your first attempt fails you could then promptly resubmit the form under the original conditions (student until 2009). With sufficient evidence it should then be easy sledding.

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Post by Directive/2004/38/EC » Fri Nov 11, 2011 4:57 pm

It is not uncommon for graduate students to strike, at least in some countries. See http://www.google.co.uk/search?q=gradua ... ent+strike This is especially relevant where students are used to teach undergraduate courses.

My point in any case is that the tax status of money that a student may receive is not, in itself, relevant for whether the person is considered a worker or not. You can easily imagine a situation where the tax law is used to simplify and subsidize the financial life of hard working students or graduate students.

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Post by anaotchan » Tue Jan 03, 2012 12:21 pm

EUsmileWEallsmile wrote:Technically your husband should have had comprehensive sickness insurance throughout his time here to benefit from treaty rights.

Your husband may get away without this requirement if he applied for a residence certificate before June 20th 2011. This comes from chapter 6 Annex B of Permanent Residence cards. See the link here.
http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/
Sylviaucl wrote:I applied for EEA2 in 2009, but my husband did not get a EEA1 (RC). So I guess this won't help much
EUsmileWEallsmile wrote:Technically you could argue that your husband did apply for an EE1. They would not have issued you with an EEA2 unless he qualified for an EE1.
is there a chance this may actually work? I've been living here for 6 years (4 years as a PhD, 2 years employed). My non-EEA husband got his EEA2 last April, but unfortunately I didn't bother getting my residence card. Could I now argue that I was technically issued an EEA1 before June 2011, and apply for PR? ... seems like a long shot to me!

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Post by Directive/2004/38/EC » Tue Jan 03, 2012 12:41 pm

Remember that applying for an RC (or equivalent for EU citizen) is just a confirmation of what already has happened. So if you have already qualified, the existance of an RC is not relevant.

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Post by Gyfrinachgar » Sat Sep 22, 2012 3:22 pm

@Sylviaucl: Are you still a member of this forum? If so, I would really appreciate if you could update us on any development regarding this question. It pops up occasionally and we don't have enough precedence, not enough feedback to answer these questions confidently. It has been a while now. Which route did you go? Did your application work alright? Does HO accept bursary students as workers?

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