Immigrationboards.com

Just thought I'd post this here, although, if many people affected are on this forum, it might already be late!

There is a trend of some adminstrative formalities causing many people to get caught out! If a person is a student, he/she (it ) is more or less likely to be aware of the requirements to have a PRIVATE (NOT NHS) medical insurance in order to have been continuously exercising Treaty Rights.

If an EEA national is a worker/self-employed, they need only comply with the requirements of the Worker Registration Scheme (WRS) (if from the A10 countries), and then there is no requirement to have a medical certificate etc.

However, if an EEA national wishes to apply for a Document Certifying Permanent Residence on an EEA3 form and his family member will wish to apply for a Permanent Residence card on an EEA4 form, they will need to prove that the EEA national had exercised the Treaty Rights in any of the categories for the 5 years.

In order to successfully apply for either of the above, one must prove:

A) 5 years' continuous RESIDENCE and
B) 5 years' continuous EXERCISE OF TREATY RIGHTS (in ANY category).

While RESIDENCE requirement can be proved easily and absences of up to 6 months in any 1 year do not break the continuity, the Treaty Rights a bit dodgy.

If you are a robot/not affected by the credit crunch and never had any breaks between the jobs, apart from the holidays- this DOES NOT APPLY to you.

However, if you are one of the many who, during the 5 years, changed jobs (or intend to!) and had a substantial break while looking for one, BE AWARE:

Many people who worked for many years, and stopped working for whatever reason, are supposed to do AT LEAST SOMETHING!!!

1) REGISTER with a JOB CENTRE as JOB SEEKERS while looking for another job. This is one of the requirements BOTH in the UK legislation (Regulation 2006) and the EU Directive 2004/38. If you do this, and you genuinely seek employment, you are still technically a WORKER (even though unemployed) for the purposes of the Directive and more importantly, there is no break in B) above- your exercising of the Treaty Rights; or

2) Take out a COMPREHENSIVE MEDICAL INSURANCE (NOT NHS) (and have enough money, generally not a problem). This way, you technically SWITCH into another category- becoming a self-sufficient person and your exercise of Treaty Rights has NO BREAKS as per B) above.

What many people do, like myself, ignore the paperwork requirement and are simply NOT AWARE of the requirements.
So, all the hard work you did for a number of years, does NOT count towards anything, you simply drop to the back of the line and start from ZERO.

Please, if you think you will not be working, do take out that lousy PRIVATE health insurance, or register as a job seeker, [and even CLAIM off the government while seeking employment (provided your previous employment was ended not because of your fault)].

As many people between their jobs simply take time off thinking it's ok, when it comes down to applying for PR, you will need to prove the full 5 years'. And if there are any breaks, it's no good to argue that you are an NHS patient, or you found a job in a couple of months of seeking, without registering with a job centre.

And, your family member gets affected as well!!!

Finally, if you are an EEA national but are NOT working, and your non-EEA national is working, YOU are NOT a worker but a SELF-SUFFICIENT person and require a private medical insurance for BOTH yourself AND the person working?! It's ridiculous, but true.

Don't give UKBA even half a chance please, be one step ahead at all times and it's always a good idea to read up application forms for PR even when you're in your 1st year of exercising Treaty Rights.


I have had my input in the discussion below, and noted that a case will need to go to court to rule on the proportionality of the sanctions imposed on poor unwary applicants, who are caught out through no fault of their own.
http://www.immigrationboards.com/viewto ... ht=#318043


Post Post Scriptum:

There is one TRICK for NON-EEA nationals to STILL get the PR even though their EEA national is not able to prove the Exercise of Treaty Rights for the full 5 years, but the method is DRASTIC!!!

Get DIVORCED after at least 3 years. In this case, all YOU would need is to show that at the time of the initiation of Divorce the EEA national was exercising Treaty Rights. That's all, there is no need to prove that the EEA national had been exercising them for the whole 3-year period. This way, you RETAIN the rights on your own and after the 5 years can apply for PR regardless of the status of your EEA national.

This doesn't mean dumping your EEA spouse, but simply temporarily divorcing, if only getting remarried the very next month or two!

This is just a "loophole" I thought of and wanted to share my view. There are many non-EEA nationals who would rather have a PR than another Residence Card.

Good luck, and if you find ANY of the above confusing, just ask!

Merry Xmas and a Very Happy New Year!!!!!

Hi,
Have just read your thread and thought i could ask some questions from you if you could help.
1. came to uk in 2002 illegaly
2.got married in dec 2003
3.divorced in dec 2009
Now the problem i have is that i was given the residence card in 2006 so i don't know whether the count will be from when i was given the rc or when i actuall got married.
Thanks for sharing your view

Nando, check ur thread, i answered there. Because of lack of proof, u are eligible to apply for PR in 2011, upon the expiry of your existing card.

nanaaddo80 wrote:Hi,
Have just read your thread and thought i could ask some questions from you if you could help.
1. came to uk in 2002 illegaly
2.got married in dec 2003
3.divorced in dec 2009
Now the problem i have is that i was given the residence card in 2006 so i don't know whether the count will be from when i was given the rc or when i actuall got married.
Thanks for sharing your view

Thanks for the reply.
I am abit confused because if you say i have to apply for PR in 2011, then how many years of treaty rights should i provide evidence for my ex EEA wife.I ask this because the HO told me even when you divorce you still need to prove your ex's five year treaty rights.This means that if I am to apply for PR in 2011 i still need to show evidence from 2006 - 2011 of my ex wwife.Also, if i apply now to retain my rights of residence I need to show evidence of my ex december 2004 to the date of divoce which is 1 December 2009.
Thanks and hope to hear from you shortly

Dint be confused, they will ONLY ask u for proof of 5yrs exercise IF u were to stay together.
When u apply for PR on the basis of having retained the right of resid,
In order to retain the right of residence all u need to show is that:
1) u have been married for a minimum of 3 yrs- u have;
2) at least 1 yr of these 3 has been in the UK- u have;
3) at the time of decree nisi, the initiation of the divorce (and illegally ukba ask up till decree absolute) evidence ur eea national was exercising Treaty Rights in the UK- u have that evidence.

That is IT, all U need to comply with is the same requirements as ur EEA was under up until the time of ur application for PR.
HO can NOT request evidence of ur eea exercising treaty rights for 5 yrs in case u take the retained right of residence route.
They could ONLY ask for th proof if 5yrs exercise if u STAY together. But u dont and moreover u cant prove the past 5 yrs anyway.
Just write a letter to HO with ur reference number, photocopy of ur passport n resid card and notify them of the change in ur circumstances.

One thing u MIGHT be able to do is to show that u yourself have exercised treaty rights since Feb 2005 and be able to apply for PR in Feb 2010.
Tell u why i think this may be possible:
1) u have lived together for more than 3 yrs;
2) even though u cant prove pre-feb '05 exercise, u can prove it poet 2005!
3) u started urself the 5 yrs not from the moment of marriage, but from the start of ur proof of ur wife's exercise of treaty rights.
4) Which means that in Dec 2009 when u divorced, u had some 3 mths left to apply on basis of HER 5 yrs.
5) as u divorced her before u became eligible, u have to apply on the basis of retention of rights on your own.
6) whether it was 2yrs left or 3months, it shouldn't matter, what matters is that u complied with the requirements of Directive 2004/38 and the Regulations 2006.

As i said initially, if the worse comes to the worst, u will simply apply just before the expiry of ur card issued in 2006 march. But i think u ar eligible in Feb 2010 of YOUR OWN right.
Make sure that u take out PRIVATE health insurance in case u r currently unemployed, as it is U who is exercising treaty rights now and till ur R application!

Let me know if u have any more Qs. I will give u sp

I am even more convinced u can apply in Feb 2010 for PR on your own! I have labelled it incorrectly when i said U "exercised" treaty rights. Obviously U can't literally exercise those rights. But the time of that 1 yr required for u with ur wife to have lved together in the UK to retain the right of residence started in Feb 2005.

So, if u had divorced any time between Feb 2006-Feb 2010, the effect would have been EXACTLY THE SAME! U would have been eligible for PR 5yrs after u were first legally eligible for residence in the UK! U would have had to wait till Feb 2010 at the earliest. The main and only difference would have been that:
1) if u stayd together u would have needed proof of ur wife's exercise for 5 yrs;
2) as u divorced, all u need is proof of:
a) ur wife was exercising treaty rights AT THE TIME of divorce AND
b) YOU continued to "exercise" treaty righs between the divorce and up to the time when u became eligible for PR (in Fb 2010).

So u c, if u divorced in 2006 Feb, u would have supplied ur wife's docs between feb '05 and feb'06 AND your "exercise" of rights between feb '06 and feb'10!
Because u divorced now, u just supply (arguably) ur wife's proof between feb '05 till your divorce(2009dec) AND from then till feb2010 ur "exercise"
of rights!


I hope u see my point. Everything before 2005 Feb is irrelevant as there is NO proof at all of ur wife exercising her Treaty Rights. U can treat it as if u had been married and lived "abroad" all this time.

I am busy now, but in March, when u can apply for PR, i can help u fill out the application form for PR.
One thing which u may need to ask ur wife is to lend u her ID for a while.

Hi Datuchi,
Thanks for the reply. I am still not clear since i understand from UKBA come to apply for PR regardless of Retain Right or not, one needs to provide evidence of ex for continous excersice of treaty rights for 5 years. If I understand UKBA correctly, i guess non eea after divorce whether pre 5 years or post 5 years need to get the whole five year docs from ex eea.So in my case if i apply for PR under retain right of residence, I still need to prove es treaty rights from 7 Feb 2005-8 Feb 2010 eventhough divorced on 2 Dec 2009, IN this case my understanding from UKBA is that i still would need evidence after divorce(3 Dec 2009 - 8 Feb 2010) in order to qualify for PR.
Please reply and let me know if UKBA is wrong about what thev'e said and if possible give me a quote from EEA REGULATIONS 2006. About ex passport i wonder since we are still having issues with the mortgage we bout togather, but anyway I have the HO card that was issued to her during RC application.Would UKBA accept that? please let me know.
Thanks alot for your help.

check these links out. The HO cannot request anything after the divorce, but only proof of your "exercise of rights".

The Regulations might be written with incorrect interpretation of the Directive2004/38, which takes precedence if, because of incorrect interpretation, you suffer.

Have a read through these posts and let me know if you find it helpful.



http://www.immigrationboards.com/viewto ... a2+divorce


http://www.immigrationboards.com/viewto ... ts&start=0


http://www.immigrationboards.com/viewto ... +insurance



http://www.immigrationboards.com/viewto ... ht=morpheo

See the caseworker instructions for PR! These are what the HO will look at when considering your app.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

In particular, see paragraph 6.2

Completion of 5 years residency after having retained the right of residence
The following documents must be supplied by a non-EEA national family member who has retained the right of residence and who is applying for a Permanent Residence Card under regulation 15(1)(f) having completed 5 years residency:
•
A valid passport
•
Documentation confirming that s/he has completed 5 years residency in accordance with the 2006 Regulations as the family member of an EEA national exercising Treaty rights / as a person who has retained the right of residence.- This is what they are ILLEGALLY asking, not that you retained the right, but proof that your EEA national exercised Treaty Rights. Proof of 5 years' entitlement should be MIXED if anything. All you need to show, that you were married for 3 years, and LIVED for at least 1 year in the UK. So, technically, all you need to show is that at the time of divorce your EEA exercised Treaty Rights, not the WHOLE period even! And from then on, YOU worked etc.

datuchi wrote:Just thought I'd post this here, although, if many people affected are on this forum, it might already be late!



Merry Xmas and a Very Happy New Year!!!!!

Hi, when I have read ur post i have decided to register though i have been reading only this forum for more then a year. You have posted my thoughts.

Very sad, but my husband is the person who never bothered himself with collecting needed documents and complying the immigration ruls. Now i am (non-EU wife) pregnant and feeling that me and our baby will be affected by this carelessness.

To make things clearer, read my tread.

Thank you