Questions re: EU spouse residence card & sickness insurance

Hi I have a couple of questions regarding the EU residence card and particularly the requirement to have comprehensive sickness insurance.

I am a PhD student (EU national) and my spouse is a student (American national). I have lived in the UK for 11 years, 4 of those in employment (not consecutive) and the rest as a student. She is still currently in the UK on a student visa, and has one year left on her degree, but her visa is running out in a month. We got married last month and were originally planning to apply for the residence card for her, but haven't yet because of some questions regarding the insurance and our situation in general.

1) Does the requirement to hold sickness insurance extend to doctoral students? I have a maintenance scholarship (tax-free) from the UK to an amount that, if I was a UK citizen, would qualify me to sponsor a spouse here, so would it not also be counted as income in the EU case? Or will I still be classed as a student and therefore required to hold the sickness insurance in order to qualify for the residence card for myself or my partner?

2) When my partner's student visa runs out, is it enough for her to be married to me to be allowed to continue on her degree? Will our marriage certificate and passports be enough to prove to her university that she still has a right to study in the UK despite her student visa having run out?

3) My partner also works alongside studying and was previously not able to work self-employed because of her student visa. Will being married to an EU citizen now allow her to work self-employed (while studying)?

4) What are the main disadvantages of NOT applying for a residence card at all? My partner is already able to travel in Europe because of being American, so I don't anticipate any problems entering or leaving EU countries. Would the main issue be proving to employers/landlords etc. that she has the right to reside and work here due to being married to an EU citizen?

5) I am not sure if I myself would currently qualify for permanent residence, having lived in the UK for 11 years, but only 4 of those in employment. In the 7 years that I've been here as a student (1 of those as a PhD student) I haven't held sickness insurance, but would this be a retrospective requirement if I was to apply for a permanent residence card even though this rule wasn't in place for most of that time?

I'm sorry for having so many questions, I just can't seem to find the information anywhere! Thanks so much in advance to anyone who replies.

ajazz wrote:Hi I have a couple of questions regarding the EU residence card and particularly the requirement to have comprehensive sickness insurance.

...

1) Does the requirement to hold sickness insurance extend to doctoral students? I have a maintenance scholarship (tax-free) from the UK to an amount that, if I was a UK citizen, would qualify me to sponsor a spouse here, so would it not also be counted as income in the EU case? Or will I still be classed as a student and therefore required to hold the sickness insurance in order to qualify for the residence card for myself or my partner?

2) When my partner's student visa runs out, is it enough for her to be married to me to be allowed to continue on her degree? Will our marriage certificate and passports be enough to prove to her university that she still has a right to study in the UK despite her student visa having run out?

3) My partner also works alongside studying and was previously not able to work self-employed because of her student visa. Will being married to an EU citizen now allow her to work self-employed (while studying)?

4) What are the main disadvantages of NOT applying for a residence card at all? My partner is already able to travel in Europe because of being American, so I don't anticipate any problems entering or leaving EU countries. Would the main issue be proving to employers/landlords etc. that she has the right to reside and work here due to being married to an EU citizen?

5) I am not sure if I myself would currently qualify for permanent residence, having lived in the UK for 11 years, but only 4 of those in employment. In the 7 years that I've been here as a student (1 of those as a PhD student) I haven't held sickness insurance, but would this be a retrospective requirement if I was to apply for a permanent residence card even though this rule wasn't in place for most of that time?

I'm sorry for having so many questions, I just can't seem to find the information anywhere! Thanks so much in advance to anyone who replies.

1) Under EU rules, qualified persons (in the EU sense, not academic sense), eg students & also self-sufficient persons, (ie EEA nationals plus family members), need to have CSI in order to be deemed exercising treaty rights.
Otherwise your PR clock is not considered to be running.

2) A Uni will probably want to see a RC or at least a COA.
They play hard ball with student registration under immigration rules these days.

3) Go for it. Just register with HMRC.

4) A RC is optional, it does not confer status (it merely confirms it).
Yes it helps with employers, also benefits agencies, universities (etc) simply because it does confirm said status.

A domestic-issued RC (ie not an Article 10 RC) will not really help with other EU countries.

5) You will need full documentary evidence every step of the way that as a qualified person you have exercised treaty rights continuously (in UK) for 5 years. (And breathe).

Note There was a transitional arrangement in place back in 2012 when the long-standing requirement for students to have CSI started being enforced.

To take advantage you will have had to have had a RC issued back then.
If you have such a RC dating from 2012 you may be in the clear (in PR terms) with your past time spent as a student.

If you had no CSI (or, at a pinch, a foreign EU-issued EHIC card) in the past then your previous time as a student will not be deemed as exercising rights.
So your PR clock may have stopped & started several times.

You can't take out CSI and back-date it.
To acquire PR you have to exercise rights continuously so the upshot is that time is likely lost.

Note PR is acquired automatically by correctly exercising treaty rights.
A PR card is again just a confirmation of status (in this case, of settled status - a vital prerequisite to the privilege of naturalisation);
Ie just as for a RC, a PR card doesn't grant residency in itself.

Hope it makes sense. Good luck.

PS about your wife and her expiring student visa...

Don't just assume it's going to be OK switching to EU rules & treaty rights - inform uni of your plan & see if they buy into it.
Suggest finding out exactly what they expect to see in terms of paperwork.
(Bear in mind they may not be EU free movement & immigration law experts).

See this case as an example of the stress and confusion (& delay) that can occur through mixups & miscommunication:
http://www.immigrationboards.com/genera ... 94593.html
- not exactly the same but it involves a US citizen/UK uni plus questions over the correct 'visa' to hold

It takes some time to get a RC (more than the 1 month you have in hand).
Don't fall between the gaps.

Thank you so much, that's all super helpful!

I have a follow-up question: I am also working alongside my studies, but it's only 5 or so hours a week (as a teaching assistant). I have read, however, that I might still be able to claim I'm exercising my treaty rights as a worker (as opposed to as a student) as there's no requirement that the employment is a certain number of hours a week, or the salary a certain amount (e.g. here: http://www.lawfirmuk.net/euro_e.html).

Is this really the case? Are there any examples of where this has worked?

ajazz wrote:Thank you so much, that's all super helpful!

I have a follow-up question: I am also working alongside my studies, but it's only 5 or so hours a week (as a teaching assistant). I have read, however, that I might still be able to claim I'm exercising my treaty rights as a worker (as opposed to as a student) as there's no requirement that the employment is a certain number of hours a week, or the salary a certain amount (e.g. here: http://www.lawfirmuk.net/euro_e.html).

Is this really the case? Are there any examples of where this has worked?

Interesting question.

Here is the HO guidance on qualified persons.
This is what the caseworkers at the coal face will (apparently) use to assess your application.

See page 11 on the topic of whether someone is a worker:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

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

ajazz wrote:I am also working alongside my studies, but it's only 5 or so hours a week (as a teaching assistant).

I personally would doubt that this would qualify as "genuine and effective" work.

Firstly, do you earn any amount from this work or does it go towards the cost of your studies?

There has been some discussion on these forums on whether the Minimum Earnings Threshold (MET) applies to EEA citizens only for the purposes of claiming DWP benefits or also for the purposes of Home Office applications. I am firmly in the former camp and do not think that it applies to Home Office applications. But the MET is something that you should be aware of.

Secondly, it seems to me to be a part of your PhD course to assist in teaching undergraduates and research students in that field. That would almost certainly qualify as supplementary to your studies.

Finally, 5 hours a week is about the same amount as what a full-time worker takes as lunch break time in a week. It puts things in perspective.

secret.simon wrote:

ajazz wrote:I am also working alongside my studies, but it's only 5 or so hours a week (as a teaching assistant).

I personally would doubt that this would qualify as "genuine and effective" work.

Firstly, do you earn any amount from this work or does it go towards the cost of your studies?

There has been some discussion on these forums on whether the Minimum Earnings Threshold (MET) applies to EEA citizens only for the purposes of claiming DWP benefits or also for the purposes of Home Office applications. I am firmly in the former camp and do not think that it applies to Home Office applications. But the MET is something that you should be aware of.

Secondly, it seems to me to be a part of your PhD course to assist in teaching undergraduates and research students in that field. That would almost certainly qualify as supplementary to your studies.

Finally, 5 hours a week is about the same amount as what a full-time worker takes as lunch break time in a week. It puts things in perspective.

+1

'Lunch break' how quaint.

noajthan wrote:PS about your wife and her expiring student visa...

Don't just assume it's going to be OK switching to EU rules & treaty rights - inform uni of your plan & see if they buy into it.
Suggest finding out exactly what they expect to see in terms of paperwork.
(Bear in mind they may not be EU free movement & immigration law experts).

...

If such a change from visa to treaty rights is permitted, not sure what, if anything, it does to the fees status of the student.
You may wish to dig into that.

(EEA students usually enjoy Home fee status, subject to certain residency rules & timelines).

afaik fee status is set on commencing the course and cannot usually be changed.