Do changes to EEA4 prevent me from applying for Perm Res?

[Cammey]

My situation:

1) I have a New Zealand passport and will have lived in the UK for 7 years on 16th August 2008.
2) The first 2 years were on a working holiday visa and the next 5 years were on a residence card issued as a Non-EAA family member of an Italian (my wife) who has resided in the UK for over 15 years, but has never applied for citizenship or permanent residency. She has had a residence card for 5 years.
3) We were married in June 2003.
4) I have been in continuous employment in the NHS for 6 years, but the first year and a half was as a contractor.
5) In the past 5 years my wife has had a couple of part time jobs, but nothing continuous. She has mainly been a house wife and has had done some redecorating on our house.
6) My residence card expires on 2nd August 2008 so I want to apply for permanent residency using form EEA4.

The problem I have is that changes to Section 4 on form EEA4 now seem to prevent me from applying for permanent residency, because my Italian wife has not been in continuous employment for 5 years and doesn’t seem to fit any of the other criteria.

In September 2007 I downloaded EEA 4 from the Internet and read it over. I was perfectly happy that I could apply for permanent residency once my residence card expired. In the 2007 form Section 4 stated that my EEA family member or I can exercise the 5 year treaty right through continuous employment,

However, now that I have downloaded the 2008 version of the form, section 4 has changed completely and now states that only my wife can exercise the treaty through continuous employment for 5 years. Of course she can’t, because she’s been a house wife. Has there been a law change this year?

I was thinking of using the ‘Economic self-sufficiency’ criteria, stating she is self sufficient through my employment, but the definition is ambiguous and evidence is required of comprehensive sickness insurance???. What about the national insurance I’ve been paying for the last 6 years?

Can someone please advise my options?
Has there been a law change in 2008?

Thanks

[thsths]

The problem I have is that changes to Section 4 on form EEA4 now seem to prevent me from applying for permanent residency, because my Italian wife has not been in continuous employment for 5 years and doesn’t seem to fit any of the other criteria.

...

I was thinking of using the ‘Economic self-sufficiency’ criteria, stating she is self sufficient through my employment, but the definition is ambiguous and evidence is required of comprehensive sickness insurance?

Indeed, this is a slightly difficult area. The general interpretation was that the right to work can also be utilised by the spouse, so in this case she would qualify as a worker, even though you were actually the main earner.

If that does no longer work, self-sufficient is certainly another option. The fact that she did not get benefits proves that she was self sufficient. And as your wife she would be covered by the NHS, so health insurance is not an issue either.

But I am surprised that this is getting so difficult. Do you have the two versions of the form available?

Tom

[John]

Cammey, suggest you click here to download Chapter 6 of the European Casework instructions that UKBA gives to its staff dealing with PR applications.

In particular read no. 2, especially the bullet point that reads :-

A worker or self-employed person who has ceased activity

-: which seems to cover your wife's situation perfectly. And you? :-

Non-EEA national family members who have resided in the UK (in
accordance with the Regulations) for a continuous period of 5 years

As regards your wife, the good news I can give you is that she already has PR status ... even without application! Given that she had never applied for PR status, and had clearly been exercising EU Treaty Rights for more than 5 years at that point in time, she got PR status automatically on 30.04.06, when new EU regulations came into force. If she wants she can use form EEA3 to get that confirmed, but any document she receives will merely confirm the status that she already holds, and has had, probably without realising it, for over 2 years.

For you, in fact the completion of the form EEA4 is also voluntary. You will also get PR status automatically on the 5th anniversary of the issue of your Residence Card ..... 02.08.08? So you are not required to apply for a PR sticker. Any sticker you do get confirms PR status that you will already possess.

However for you, it really will be a good idea to make the application on form EEA4. This is because you may encounter difficulties proving to an employer that you do indeed have PR status. That is, an employer cannot be expected to know these finer points of the EU regulations about PR.

Suggest you get the EEA4 in the post as soon as possible. The acknowledgement letter you receive back will confirm your continuing ability to work, pending the application being dealt with.

Do you intend to apply for British Citizenship? If so, is your wife also interested in applying? The point is that if she becomes British, as soon as that has happened you will be married to a British Citizen ... and accordingly could apply for your own British Citizenship immediately ... cutting out the need to delay your application until you have had PR status for at least one year.

Any adult ... 18 to 65 ... wanting to apply for Naturalisation ... will need to pass the Life in the UK Citizenship test before applying.. So study required ... you and your wife study together? Just a thought.

[Cammey]

The problem is, I can't see how I can complete section 4 of form EEA4 correctly, because my wife hasn't been in employment for 5 years and we have never had private medical insurance so can't use the ‘Economic self-sufficiency’ criteria.
Also there must be a reason that the EEA4 form has been changed in 2008 so that my employment isn't also included in section 4. I don't want to risk the application being denied as we have a large mortgage to pay with my wages.

So, I'm thinking to instead apply for the 5 year residency card using EEA2 (for the second time), because the deadline is so close and I'm unsure about EEA4. Form EEA2 is a lot clearer and I fit the criteria in section 4 as the employed person. Also we have a wedding to attend overseas in February so I don't want any application delays.

Can I apply using EEA2 again? Also if I do receive a 5 year residency card, could I apply for permanent residency in say a year’s time once my wife has had a job for a while? This would give us more time to access our options.
Does the 5 years of the EEA2 residency card have to be complete before I can apply for permanent residency using EEA4?

Thanks

[John]

You don't need to use "Economic self-sufficiency", the category for her is "A worker or self-employed person who has ceased activity". That is :-

A person satisfies the conditions if s/he:

• terminates his/her activity as a worker or self-employed person and:

• has reached the age at which s/he is entitled to a state pension on the date on which s/he terminates his/her activity; or
• in the case of a worker, ceases working to take early retirement;
  • pursued his/her activity as a worker or self-employed person in the United Kingdom for at least twelve months prior to the termination; and
  • resided in the United Kingdom continuously for more than three years prior to the termination.

I don't know how old she is, and therefore it might be strange to talk of early retirement, but if she has stopped work, that term sums up what she has done .... at least for the time being.

So Cammey, don't use form EEA2, that is not the correct form to use. Use the EEA4! And your use of the words "because the deadline is so close" means you have not appreciated that you will actually get PR status automatically, on the 5th anniversary of the start date of your Residence Card. You are not required to apply for anything! It is merely a good idea that you do so, in order to prove, without a problem, that you do indeed have PR status.

[thsths]

The problem is, I can't see how I can complete section 4 of form EEA4 correctly, because my wife hasn't been in employment for 5 years and we have never had private medical insurance so can't use the ‘Economic self-sufficiency’ criteria.

You can check with form EEA3, it explicitly mentions that your employment may provide the funds that make your spouse self sufficient. There is no need to have private insurance, because you are both covered by the NHS based on your employment.

I don't want to risk the application being denied as we have a large mortgage to pay with my wages.

So? Obviously you managed to pay the bills for 5 years, that is all the proof needed here. I am still surprised why this form is so complicated, after all it should make things easier!

If you feel naughty, you can just write down your case in prose. There is no need to use the form according to European law. Although I would just fill it in as good as possible, and let the UKBA do the hard work of interpreting it.

Also we have a wedding to attend overseas in February so I don't want any application delays.

With the current processing times this is cutting it very close, regardless of whether you apply for EEA2 or EEA4.

Does the 5 years of the EEA2 residency card have to be complete before I can apply for permanent residency using EEA4?

You need to be in the UK together with your spouse for 5 years. And my guess is that they only check that when the application is processed in a few months time. So you can probably apply a few months earlier.

Tom

[Cammey]

I understand everything you guys are saying, but why are the forms EEA3 and EEA4 written in such a way that it implies that I don't qualify.
I'm filling them out now and have had to write many side notes because I can't fill in the boxes in section 4 correctly with my circumstances.
If my circumstances are ok, why have the forms recently been changed so that my income can't be included in section 4 for the 5 year treaty right?

What worries me is what will happen if the applications are rejected? Wouldn’t it be a lot safer to apply using EEA2, 5 year permit?

Thanks

[thsths]

If my circumstances are ok, why have the forms recently been changed so that my income can't be included in section 4 for the 5 year treaty right?

I have no idea. There seems to be a lot of "fiddling" with the forms going on, and maybe it is hit or miss whether they are correct or not. At least that is my personal impression. The overall quality is certainly quite poor, and they do imply a lot of things that are just not true.

What worries me is what will happen if the applications are rejected? Wouldn’t it be a lot safer to apply using EEA2, 5 year permit?

No, the law is the same for both applications: either you are covered by the right of free movement, or you are not. Since you have been here for 5 years, this should be sufficient for PR. And even if you do not qualify for PR, you should be given a residence card if you qualify for that, even if you apply with form EEA4.

Tom

[Cammey]

I've spoken to someone on the phone number displayed on the EEA4 form and they have said that I would have to select the option 'Self Sufficiency', but comprehensive sickness insurance is required. Even though I'm making National Insurance payments.
She also said that if I sent the form in and it was rejected I would no longer have the working rights of my expired 5 year permit, even if I reapplied using EEA2. This would be a disaster and we would loose the house.

So I'm going to play it safe and apply for another 5 year with EEA2.
Can I then apply for EEA4 in say a year’s time even if the 5 years isn't completed on the new permit? Sorry I didn't ask and can't wait another half an hour on the phone again.

(The strange thing is that form EEA3 has a box to include my income, which may be looked at as slightly inconsistent. I just can’t risk it though)

[Cammey]

Hi guys, thanks very much for your input, but I have to make a decision by early afternoon today (31 July) so that I can send the forms in by special delivery.
Should I go for permanent residency by sending in forms EEA3 and EEA4; or go for EEA2 (the safe option).
I appreciate all the advice given on this thread and another, but I can’t risk being deported.
After 7 years in the UK and marriage We have built our life's here and having to leave in a hurry would cause havoc; especially considering we’re on the border line financially with mortgage payments. If my income was lost our house would probably be lost.

Lets say, I applied for permanent residency and it was rejected; what would the consequences be? Even if the EEA forms are a sham, because they don’t follow legislation?

What come-back do I have if the application is rejected? Especially if the ‘Home Office’ representative only knows the form?
I’ve made numerous calls to the Home Office and everyone I’ve spoken to has indicated that I can’t apply for permanent residency because my wife doesn’t work; and if rejected I have no more rights to be here.

I don’t even know if I can apply for a 5yr residence more than once (EEA2)?

Please post any suggestions ASAP.

Thanks, Cameron.

(Sorry for posting this on more than one thread, but I need as much advice as possible. I had every thing planned ages ago after downloading the 2007 version of EEA4, but it changed in 2008).

[thsths]

Hi guys, thanks very much for your input, but I have to make a decision by early afternoon today (31 July) so that I can send the forms in by special delivery.
Should I go for permanent residency by sending in forms EEA3 and EEA4; or go for EEA2 (the safe option).
I appreciate all the advice given on this thread and another, but I can’t risk being deported.

You are understandably worried about this, but I think you are imagining a problem that is not there.

Check the two pages http://www.dh.gov.uk/en/Healthcare/Enti ... /DH_074374 and http://www.dh.gov.uk/en/Healthcare/Enti ... /DH_074381, and you will see that you and your spouse are covered fully by the NHS according to either condition. So you can apply because your spouse self sufficient. Your employment provides both the necessary income and the health insurance.

In EU law, the condition makes sense. You need to have enough money not to be a "burden on the public", and you need health insurance, because in some countries that is based on contributions. However, in the UK, health insurance is granted based on residence, so the condition makes no sense. You could still argue that benefiting from the NHS is a burden on the public, but that is far fetched, and not applicable in your case.

Lets say, I applied for permanent residency and it was rejected; what would the consequences be?

Nothing. You can have the right of residence, but not permanent residence, so one has no influence on the other. You can still apply for another residence card, although I would probably appeal the decision. And anyway the application has very little to do with your right of residence: the application is just for confirmation of an existing right.

What come-back do I have if the application is rejected?

You appeal the decision. The biggest danger is that your employer gets difficult, but the Certificate of Application should be sufficient to demonstrate your right to work for the time being. The other obvious danger is that this will create stress for you and cost money for a lawyer.

I don’t even know if I can apply for a 5yr residence more than once (EEA2)?

Yes, you can, but waiting times are quite long at the moment (2 months for the CoA, and about 7 for the residence card).

Anyway, have a look at the casework instructions http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary for permanent residence. It seems like a rather quickly written document, but it does not mention any specifics about health insurance. Of course this is part of the general requirements, but there is no evidence whatsoever that the NHS is not sufficient.

And good luck!

Tom

[Cammey]

Thanks, I sent off the EEA3 and EEA4 forms this afternoon.

What is the current waiting times on these?