Applying for ILR, EEA citizen not working

[affyduck1]

Hi,

My husband (Pakistani) was supposed to be applying for ILR next month. However, we have just discovered that it is a big issue that I have not been working for the past year!

TIMELINE:

Husband -
2005 Student visa
2009 Post study work visa
2011 Family member of an EEA citizen

So I was a student in 2011 when he applied for his family member of EEA residence card and in 2012 I graduated and there was 6 month gap in which i was looking for work after graduation (will this be a problem too??). I then started working in February 2013 and left my job in October 2014 to look after my toddler. So since that time I have been a stay at home mum but apparently this does not count as exercising my treaty rights! (which on a side note I consider to be sex discrimination since apparently this does not 'count' unless I am paying someone else to raise my child...!)

I would greatly appreciate any advice for our case. I have the same health insurance that I originally used in my husbands EEA application which is from Ireland (my country of citizenship) and covers the UK.

I have been financially supported by my husband but my bank account will not show enough funds for me to be considered 'self sufficient' by any stretch.

The only way I can think of showing that I am self sufficient is to show that I have been registered as paying council tax since November 2014 (just after I left work).

My last question is regarding child benefit - I have not been in receipt of any benefits like job seekers or unemployment etc EXCEPT child benefit because I was entitled and I did not think it would affect anything since it is my right. Now I am worried it will have an impact on the application??

Should I register as a job seeker now or will it make any difference?

I look forward to your knowledgeable responses! Thanks in advance.

[affyduck1]

There is an additional part to our case... If i have been in the UK for more than 5 years by 2012 (there was a gap of 6 months but lets say i can show i was job seeking by demonstrating I went to interviews which I did), does that mean that after this time period I do not need to show that I was exercising treaty rights in order for my husband to be granted ILR?

[noajthan]

Hi,

My husband (Pakistani) was supposed to be applying for ILR next month. However, we have just discovered that it is a big issue that I have not been working for the past year!

TIMELINE:

Husband -
2005 Student visa
2009 Post study work visa
2011 Family member of an EEA citizen

So I was a student in 2011 when he applied for his family member of EEA residence card and in 2012 I graduated and there was 6 month gap in which i was looking for work after graduation (will this be a problem too??). I then started working in February 2013 and left my job in October 2014 to look after my toddler. So since that time I have been a stay at home mum but apparently this does not count as exercising my treaty rights! (which on a side note I consider to be sex discrimination since apparently this does not 'count' unless I am paying someone else to raise my child...!)

I would greatly appreciate any advice for our case. I have the same health insurance that I originally used in my husbands EEA application which is from Ireland (my country of citizenship) and covers the UK.

I have been financially supported by my husband but my bank account will not show enough funds for me to be considered 'self sufficient' by any stretch.

The only way I can think of showing that I am self sufficient is to show that I have been registered as paying council tax since November 2014 (just after I left work).

My last question is regarding child benefit - I have not been in receipt of any benefits like job seekers or unemployment etc EXCEPT child benefit because I was entitled and I did not think it would affect anything since it is my right. Now I am worried it will have an impact on the application??

Should I register as a job seeker now or will it make any difference?

I look forward to your knowledgeable responses! Thanks in advance.

As family member of EEA hubby is on path to acquiring PR via you as sponsor exercising treaty rights. not ILR.

If not a burden on the state you may be self-sufficient as long as CSI covers both of you.

You will probably have needed CSI as a student unless covered by 2012 transitional arrangements.

Absence from UK up to 6 months in 1year does not break continuity of treaty rights.

Child benefit is not afaik a deal breaker.

If you had a period of maternity leave whilst working that counts as part of your status as a worker too.

[secret.simon]

From the timeline posted, I believe that the OP is talking of her husband applying for LR based on 10 years long residence rather than through the PR route.

For Long Residence, the requirement is that the person has spent 10 continuous years legally in the UK from the date of entry into the UK. He also needs to meet the other ILR requirements (KOLL, etc).

There is no need for the EEA partner to be exercising treaty rights for the purpose of ILR (LR), so long as your husband was with you in the UK. You may (I'm not sure) have to provide proof of a subsisting relationship (joint bank accounts, bills, etc).

I then started working in February 2013 and left my job in October 2014 to look after my toddler. So since that time I have been a stay at home mum but apparently this does not count as exercising my treaty rights! (which on a side note I consider to be sex discrimination since apparently this does not 'count' unless I am paying someone else to raise my child...!)

Taking maternity leave from work maintains your worker status as you are still employed (albeit on leave)and hence still a worker. So, rather than quitting, had you taken the one year of maternity leave that you are entitled to, your worker status would have been maintained.

I have the same health insurance that I originally used in my husbands EEA application which is from Ireland (my country of citizenship) and covers the UK.

Do you have CSI or do you have an EHIC card from Ireland? General observations on these forums indicate that EHIC cards are only acceptable for the purpose of exercising treaty rights while the EEA partner is a student and not if s/he is self-sufficient, which I believe is your status at the moment.

As an aside, as an Irish citizen in the UK, you are considered settled on arrival and you should be able to apply for benefits (if you need them). Also, if your child was born in the UK, I believe that s/he is a British citizen by birth too.

[noajthan]

From the timeline posted, I believe that the OP is talking of her husband applying for LR based on 10 years long residence rather than through the PR route.

...

ok, noted.

But as OP is an EEA national in a 3rd EU country wouldn't it be more straightforward under EU route over just a 5 year time slot?
(Unless specifics in this case conspire against adequate continuous exercise of treaty rights).

[affyduck1]

Some clarifications:

Yes he is applying for ILR based on 10 years residence. He is coming up to 5 years next year on EEA route so thats why we are doing ILR now because we thought it would be quicker. I was under the impression after consulting several lawyers that I DO need to be exercising treaty rights?
I have CSI with a private company called VHI.
I have been informed by the UKVI that I am considered self-sufficient if my husband has been supporting me and we just need to show evidence of his income. Is this correct?

My husband is now telling me that since I have been here 8 years, if I had applied for PR after 5 years in 2013, he could have applied for PR at the same time and he would been naturalised within 1 year, is this correct?? Have we gone about this entirely the wrong way?

We have been given so much conflicting information in the past couple of days I don't know whats right or wrong anymore.

[affyduck1]

Ive just been told by another lawyer that our chances are very slim and that if he is rejected then he will have to leave the country (and obviously me go with him since we are a family). I feel sick now and I'm so depressed thinking about. Has anyone been in a similar situation as this one and can they please advise?

[noajthan]

Ive just been told by another lawyer that our chances are very slim and that if he is rejected then he will have to leave the country (and obviously me go with him since we are a family). I feel sick now and I'm so depressed thinking about. Has anyone been in a similar situation as this one and can they please advise?

Not sure if this can help but here goes...

As you are an EEA national, if you have been exercising treaty rights in any past period of 5 years in UK (in a recognised category that you can back up with evidence) then spouse will have acquired PR (as long as he was resident in UK too).

CSI is needed if you were either a student or self-sufficient for any part of the 5 years so good that you hold (have held) CSI.

Acquiring PR in such circumstances is automatic;
if not absent from UK for more than 2 years your spouse won't have lost it - so if he did acquire it he still has it.

So if 2013 is a key date & his PR may have been acquired back then then he may still have it.
The point is it doesn't have to be over acquired the exact last 5 years

A PR card is a confirmation of this PR/settled status (it won't grant settled status);
if it has been acquired in the past you just need to submit the evidence to get a card as confirmation.

With settled status in the bag spouse's position in UK is secured.

[secret.simon]

Yes he is applying for ILR based on 10 years residence. He is coming up to 5 years next year on EEA route so thats why we are doing ILR now because we thought it would be quicker. I was under the impression after consulting several lawyers that I DO need to be exercising treaty rights?

PR is faster to acquire because it is acquired automatically on the requirements laid down by the EEA Regulations being met. What you apply for to the Home Office is a PR card, which is optional to obtain.
ILR is granted by the Home Office and can be refused.

Your husband would have to apply for ILR based on his own record. To the best of my knowledge, your exercise of treaty rights is immaterial to the application. It is his continuous legal stay in the UK that will matter for the application.

Ive just been told by another lawyer that our chances are very slim and that if he is rejected then he will have to leave the country

As the husband of an EEA citizen resident in the UK, your husband can not be asked to leave the country, unless he is a risk to either national security or public health. The Home Office does not have that option. So relax.

My husband is now telling me that since I have been here 8 years, if I had applied for PR after 5 years in 2013, he could have applied for PR at the same time and he would been naturalised within 1 year, is this correct?? Have we gone about this entirely the wrong way?

When did the two of you marry? If you give us your timeline, we can advise on if you may have already acquired PR. Remember, PR status is automatic. It does not need to be applied for.

The advice given by these solicitors seems to be at significant variance with the knowledge of other users on these forums. I request moderators on these forums who are lawyers (I can think of Obie, vinny and Amber, but there may be others) to advise on this thread.

[affyduck1]

We got married in 2011 and since then he has held his family member of EEA citizen residence permit. I have been in the country since 2008 and I am an Irish citizen. I would have been automatically granted PR in 2013, but I have asked several lawyers if this is the case and the majority of them have said NO because PR must be applied for and is not automatic. However i have ALSO heard that Irish citizens are AUTOMATICALLY considered a PR on arrival, could this be the case?! I have not yet found a lawyer who would confirm that.

I have also been informed that even though he is applying on the 10 year basis, that it still depends whether I have been exercising my treaty rights because he must have been here for 10 years LAWFULLY and technically if I have NOT been exercising my treaty rights then he is not here lawfully. Is this the case? Surely this is an extremely common problem with the EEA spouse having a baby and not working?

I have spoken to probably around 5 different lawyers today and I have gotten completely different answers from each one. The lawyer who handled our EEA application in 2011 emailed me after I contacted him and made the following points:

"Unless you had in place health insurance that covered you and [husband] while you were a student then you will not have acquired permanent residence in June 2013.

· If this is the case then [husband] is not likely to be able to demonstrate that he qualifies for the ILR on the basis of 10 years long residence due to there being a period when you were not exercising Treaty rights.
· Your initial time post having a child can still be counted as exercising Treaty rights but if you are now classified as a student it will again be necessary to have health insurance that covers you and your family members in order to meet the qualifying requirements.
· In the alternative it may be possible to argue that you are self-sufficient on the basis of [husband's] income but again it would be necessary to have health insurance in place."

Is what he is saying correct? To the best of my knowledge (and I am investigating this further) we have all had health insurance for the past 5 years.

[secret.simon]

I have already given my opinion that I do not think that your exercise of treaty rights is relevant for your husband's ILR (LR) application. I will wait for the mods to comment further.

However i have ALSO heard that Irish citizens are AUTOMATICALLY considered a PR on arrival, could this be the case?!

That is pretty much exactly what I said in my first post.

As an aside, as an Irish citizen in the UK, you are considered settled on arrival and you should be able to apply for benefits (if you need them).

ILR and PR are two most common ways to acquire settled status, the former for non-EEA citizens and the latter mainly for EEA citizens and their family members. But Irish citizens, due to the history between the UK and Ireland, are considered settled on arrival (no application required). Thus, they can access benefits, their children born in the UK are automatically British, etc. So, your child, if born in the UK, would have Irish, British and Pakistani nationalities.

Mind you, this does not benefit your husband at all. He will still need to rely on you exercising treaty rights for five continuous years and qualify under the EEA regulations in 2016.

[noajthan]

We got married in 2011 and since then he has held his family member of EEA citizen residence permit. I have been in the country since 2008 and I am an Irish citizen. I would have been automatically granted PR in 2013, but I have asked several lawyers if this is the case and the majority of them have said NO because PR must be applied for and is not automatic. However i have ALSO heard that Irish citizens are AUTOMATICALLY considered a PR on arrival, could this be the case?! I have not yet found a lawyer who would confirm that.

...

The lawyer who handled our EEA application in 2011 emailed me after I contacted him and made the following points:

"Unless you had in place health insurance that covered you and [husband] while you were a student then you will not have acquired permanent residence in June 2013.

· If this is the case then [husband] is not likely to be able to demonstrate that he qualifies for the ILR on the basis of 10 years long residence due to there being a period when you were not exercising Treaty rights.
· Your initial time post having a child can still be counted as exercising Treaty rights but if you are now classified as a student it will again be necessary to have health insurance that covers you and your family members in order to meet the qualifying requirements.
· In the alternative it may be possible to argue that you are self-sufficient on the basis of [husband's] income but again it would be necessary to have health insurance in place."

Is what he is saying correct? To the best of my knowledge (and I am investigating this further) we have all had health insurance for the past 5 years.

It appears to me you have been misadvised or poorly advised to take the ILR route based on LR.

If husband has a RC then he is surely already here on the basis of EU rules & not UK Immigration Regulations.

Those lawyers are incorrect in their representation of PR.
PR is acquired automatically by someone continuously exercising treaty rights as a qualified person for 5 years in UK.
(Limited absences from UK do not break continuity of residence/exercise of treaty rights in UK).

What one applies for is a 'confirmation of PR' card. Such a card simply confirms the holder has PR ie settled status (it does not 'grant' it).

My understanding (fwiw) is that Irish citizens are special in one sense as considered to be settled in UK, directly on entry;
so you probably don't need to qualify for PR per se - I believe you have it by default.
More on this later.

Yes, qualified persons who are students (& their family members) now have to have CSI (or at a pinch, a foreign-issued EHIC).

When the long-standing requirement for students to hold CSI started to be enforced (back in 2012) there was a transitional arrangement based on someone having a RC at the time;
(something to dig into if that may apply in your case).

Self-sufficient qualified persons (again 'qualified' in the EU rules sense, not in the academic sense) also need CSI.

Note This CSI nonsense is only to meet EU rules, it's not about whether or not you can access NHS services (which you can btw).

I think you have stated you had a form of CSI, if so (& spouse is covered too) then all is well for helping to prove student (or self-sufficient) status.

My understanding is Irish citizens are special in one sense as already considered settled in UK;
so you don't need to qualify for PR per se - I believe you have it by default.
I don't know the legal basis for this.
But come to think of it a person with settled status would not need to exercise treaty rights any further.
If that is the case maybe it's enough for husband to reside with you in UK for 5 years ??

To be on the safe side (as I may be wrong on that point) I would suggest the following...

It would help you to draw up a timeline (since you got married) of what you were doing in UK and over what periods; (ie in terms of economic activity).

Capture categories when you were one of: worker; jobseeker; student; self-employed; self-sufficient.

Overlay periods when you had CSI/EHIC (if at all)
- see if it matches up when you were a student or self-sufficient.

If you can cover a 5 year period then it shows you could have acquired PR by exercising treaty rights.

As long as your husband was married (to you!) & living in UK (not even together!) he will then have acquired PR as your dependent family member.
That is settled status - a vital prerequisite to the privilege of citizenship.

Note your husband's economic activity over this time is immaterial in PR terms;
as long as it's been legal (for up to 10 years) it's all good for 'good character' & naturalisation too.

Question: are you a sole national (Irish) or a dual national (British)
It may be significant to determine whether EU rules can be used to get your case back on track.

[secret.simon]

As long as your husband was married (to you!) & living in UK (not even together!) he will then have acquired PR as your dependent family member

I am not entirely sure about this.

Firstly, I believe that for the husband to get PR, the OP will need to have exercised treaty rights for five continuous years after the marriage. Any years before the marriage will obviously count for her PR under EEA Regulations, but not her husband's. His EEA clock only started when he married an EEA citizen.

Secondly, I believe that the two of them need to be staying together for the years to count. The family members of the EEA citizen get rights under the Directive because in their absence, the EEA citizen may be deterred from exercising their right of freedom of movement under the treaties. So, I believe that the Directive expects them to be staying as a family unit (as I believe that the OP and her husband are already).

Question: are you a sole national (Irish) or a dual national (British)

Good observation. I completely missed out on this point. OP, are you Irish by either naturalisation or by birth in Ireland? Or were you born in the UK to Irish parents? If the latter, you are British without knowing it and that may complicate your situation.

[noajthan]

I am not entirely sure about this.

Firstly, I believe that for the husband to get PR, the OP will need to have exercised treaty rights for five continuous years after the marriage. Any years before the marriage will obviously count for her PR under EEA Regulations, but not her husband's. His EEA clock only started when he married an EEA citizen

Yes, agree the PR clock starts (much more) clearly after marriage for the dependent family member (spouse).
Otherwise people get into the nonsense of proving a durable unmarried relationship beforehand.

Do people have to live together 'under the EU rules' ? - not sure.
I was being over pedantic based on recent observations of learned statements from rest of forum (ticking me actually off for mentioning togetherness in a relationship, ie in context of EU rules).

I believe it's very nice for married couples to live together.
I also note OP clearly does live with spouse - so all good there for sure.

[vinny]

Do people have to live together 'under the EU rules' ? - not sure.
I was being over pedantic based on recent observations of learned statements from rest of forum (ticking me actually off for mentioning togetherness in a relationship, ie in context of EU rules).

Diatta.

------
To qualify under Long residence requires that the applicant be legally living in the the UK continuously for at least 10 years. To be legally living in the UK, a family member of an EEA national normally requires that the EEA national exercises treaty rights, unless the family member retains the right of residence some other way.

You may have automatically attained PR under the regulations earlier as well. For completeness, see also EU citizens retain ‘Worker’ status for a year when off work for maternity-related reasons > Adrian's blog and Judgment. However, I agree that Irish citizens are deemed as settled on arrival. Therefore, an Irish citizen's mere presence in the UK may be sufficient to satisfy the requirement that the Irish citizen is excerising treaty rights in the UK?


I agree that it may be better for your husband to wait and complete his five years of marriage to you before subsequently applying for confirmation of PR.

[affyduck1]

I am an Irish citizen born in Ireland so I do not hold British citizenship. Please note that I have finished my maternity leave 1 year ago, so for the past year I have had not had any worker status.

[noajthan]

I am an Irish citizen born in Ireland so I do not hold British citizenship. Please note that I have finished my maternity leave 1 year ago, so for the past year I have had not had any worker status.

Good (for your case) that you are not British.

So that last period sounds like 'self-sufficiency'. You have CSI so that helps back that up.

Are you able to draw up your timeline as suggested ? (as the picture is a little confused).

You just need to find a continuous 5 year time period in your married life in UK in the recognised categories;
(with any student/self-sufficient periods covered by CSI).
Then make sure you have the supporting evidence.

[secret.simon]

Vinny,

There is another thread in these forums, whose OP's EEA FP was rejected on the grounds of it being a marriage of convenience. Even if Diatta allows spouses to live separately within the country, surely it is in order for the Home Office to ask for proof of a "subsisting relationship" so as to disprove that the marriage is a marriage of convenience.

For completeness, see also EU citizens retain ‘Worker’ status for a year when off work for maternity-related reasons > Adrian's blog and Judgment.

Does this period apply to the year following childbirth (which would automatically be covered by maternity leave anyway) or to an additional year following one year of maternity leave?

However, I agree that Irish citizens are deemed as settled on arrival. Therefore, an Irish citizen's mere presence in the UK may be sufficient to satisfy the requirement that the Irish citizen is exercising treaty rights in the UK?

No. Irish citizens are deemed settled on arrival in their right as Irish citizens (under the Ireland Act 1949), independently of their concurrent status as EEA citizens. Therefore treaty rights do not come into play for them. However for the purpose of their family members, their settlement is irrelevant. For the family members to settle in the UK, the Irish citizen would need to exercise treaty rights for five years. So, the OP is settled on arrival, her husband will be settled (PR) when she completes five continuous years of exercising treaty rights after her marriage.

[vinny]

I think that in Diatta, it was implicit that the marriage was not one of convenience to begin with. Else, the EEA regulations would never had been applicable at all.

[affyduck1]

I have an additional question. If my health insurance is from an Irish company but it does cover me for treatment abroad, will that be accepted? its the same health insurance i had when my husband initially applied for EEA and it was accepted then.

[noajthan]

I have an additional question. If my health insurance is from an Irish company but it does cover me for treatment abroad, will that be accepted? its the same health insurance i had when my husband initially applied for EEA and it was accepted then.

It sounds perfect. I commend you on your foresight, a lot of people are caught out by lack of CSI.

[noajthan]

It doesn't matter in your case as you do have CSI but for the record ...

Correction: I got the date for the transitional arrangement for CSI wrong - it dates from 2011 (not 2012)

See https://www.whatdotheyknow.com/request/ ... issued.pdf