Non-EEA spouse of EU on 5-yr WP - can I apply through EEA4?

[geewot]

Hi all, trying to figure out all my options as my work permit is going to expire in October, and I've been pursuing the ILR route for a WP holder, but now I'm thinking I may have a shot at EEA4. My goal is UK citizenship. Would appreciate if those in the know could help.

History:
- I'm non-EEA (American), my wife is Polish (EU national)
- She entered UK 13th October 2006
- I entered UK 30th October 2006 on a 5-year work permit
- I've been working at on job on that permit for the full 5 years, it expires at the end of October.
- We got married in March 2008. We've cohabitated since I've arrived here.
- She worked full time January 2007-August 2008, and then in September 2008 until present she's been a full-time PhD student with some intermittent part time work.
- I never switched my status (never done EEA2)

So my questions are as follows:

1) Does anyone see a reason I wouldn't be eligible for EEA4?

2) How does the 5-year requirement timing work in applying for EEA4? Do I have to apply after 5 years or can I apply on the 5 year anniversary of my wife entering the country? If I can only apply after I've been here a full 5 years, do I have to "bridge" by getting an EEA2 permit?

3) Does anyone know any other advantages/disadvantages for me going for ILR vs PR via EEA4? The ones I have found reading the forum are that EEA4 is free, but takes longer to process (I've been planning on doing a premium ILR appointment to not tie up my passport and for the peace of mind of not waiting months for a decision).

4) I understand that through EEA4 I can get permanent residence, and after a year of that being awarded I can apply for citizenship -- is that correct?

Thank you very much in advance.

[nonspecifics]

1) Does anyone see a reason I wouldn't be eligible for EEA4?

An EEA national exercising Treaty Rights as a student is required to have Comprehensive Sickness Insurance ( CSI) for herself and family members, as part of their self-sufficiency requirements (EHIC cards would be acceptable).

2) How does the 5-year requirement timing work in applying for EEA4? Do I have to apply after 5 years or can I apply on the 5 year anniversary of my wife entering the country? If I can only apply after I've been here a full 5 years, do I have to "bridge" by getting an EEA2 permit?

You could apply try using the date from when you began co-habiting on the basis that it is a durable relationship with the later marriage date only corfirming that it was indeed a durable relationship.

3) Does anyone know any other advantages/disadvantages for me going for ILR vs PR via EEA4? The ones I have found reading the forum are that EEA4 is free, but takes longer to process (I've been planning on doing a premium ILR appointment to not tie up my passport and for the peace of mind of not waiting months for a decision).

The only other advantage I can think of is that those acquiring PR under EU rules do not have to pass an English language test. Though, that is probably of no advantage to you.

Once a person has either PR or ILR then the route to citizenship is the same, as UK citizenship applications are UK immigration law only.

So, to summarise, the only negative aspect I can see is that UKBA may try to say your wife was not exercising Treaty Rights for some of the 5 years, specifically when studying full-time and not working - if there was no CSI cover for her and you during those periods of time.

[geewot]

Thank you nonspecifics.

The comprehensive insurance thing does give me a bit of worry. She's had enough part-time work during her PhD that she's always paid towards and been eligible for NHS, she has an up-to-date NHS card. I've read this may qualify, anybody know?

I think you're right about date of cohabitation, which is also date I entered here on work permit -- but to apply for EEA4 by the form's requirement it has to be after 5 years here while partner exercises treaty rights. To meet that 5 years, it seems the earliest I could apply would be the day after my work permit expires.

So this are my concerns now:

1) Would I need to apply for an EEA2 so I have the right to be here to cover essentially that one day?

2) Or do I have the right to stay without a permit on the merit I'm married to an EU national with the right to be here?

3) Do I get the right to work during the period of my application (EEA2 or EEA4) being decided? Would my current work permit/LTR status be extended for this period up to the decision?

Thanks (again!)

[nonspecifics]

If your EEA spouse is currently exercising Treaty Rights you do not need a work permit anyway.

You AUTOMATICALLY have the right to work as the family member of an EEA exercising Treaty Rights.

An EEA2 Residence Card confirms that right, it does not grant it. For illustration : In the same way, a UK passport confirms someone is a British citizen, but they can be a British citizen with the all the rights, without ever having a UK passport.

A residence card is useful to have though, to show employers your right to work and if you travel out of the UK ( others have also advised to carry a copy of your marriage certificate too).

Just like a passport is useful to have for someone to prove they are a citizen of a particular country.

In UK domestic law you are both entitled to NHS treatment as residents of the UK. However, if you rely on that for proof of CSI then UKBA argue that is making yourselves unreasonable burdens on the host nation as students and their family members are required to be self-sufficient.

[Jambo]

She's had enough part-time work during her PhD that she's always paid towards and been eligible for NHS, she has an up-to-date NHS card. I've read this may qualify, anybody know?

If she did work part-time during her studies (and by part-time I mean part-time continuously rather than 2 months work, 10 months studies), she would be fine. You can use her P60's as a proof of her work.

Having an up-to-date NHS card means nothing. Everyone can get a NHS card. This still doesn't mean you are entitled for NHS service.

[geewot]

Thanks again nonspecifics, and thanks Jambo. Really appreciate it.

Interesting. After starting university, I think there was a few months (3-ish?) where she didn't have part-time work, but since then she's pretty consistently had at least one part time job. Her earnings in a year have always been below the exemption threshold, like in the neighbourhood of £6-£8k. So she's really been supported by my salary since starting school.

Does anyone know does that qualify as "self sufficient" or at least not requiring comprehensive insurance?

Thanks.

[Jambo]

Self-sufficient does require CSI. What you are after is her being qualified as a worker (even if just part time). For that, the work must be genuine and effective. There isn't a threshold of earnings and/or number of hours but earning £100 a week (from what I'm guessing is about 10 hours of work) sounds to me to be OK to qualify as a (part-time) worker.

Another option - did she registered with the HO as student (apply for EEA1 as a student). There is no requirement to do so but if she did, and it was before June 2011, the HO will waive the requirement for CSI.

[nonspecifics]

The transitional rules about CSI for students can be found here ( at the end of the document):

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

[geewot]

No, she didn't re-register on changing to a student -- she did register under EEA1 for working the first year we were here, but didn't change it when starting school. Thanks for the link nonspecifics and the info Jambo -- it pretty much shows if work wasn't taken into the picture, she'd be subject to requiring CSI. Wish we knew about that before June... what tangled webs the Home Office weaves.

So it's down to her needing to qualify as a worker (doing genuine and effective work on a part-time basis) while being a full-time student, and the Home Office makes the call whether her work was "good" enough to not require CSI, with no basis/policy on earnings/hours/acceptable gaps?

Interesting.

After learning all this and getting more support from work, I think I feel more comfortable with going the ILR route with my work permit. The premium appointment fee is a bit painful, but passport not being held and same-day decision sounds worth it to me, especially with lingering doubts on whether not her part-time work was good enough... not to mention me possibly having difficultly proving to my company that I have the right to work in the application period.

She may be interested in going on PR status after the recent research, so she may apply for than in January, which'll be 5 years after she started working here. It's free and she can still travel with her identity card to europe while the passport is held.

Thanks again for all the help nonspecifics and Jambo.