Complication - Exercising treaty rights duration

[the3rdman]

Hello all,

I have a bit of a complex situation that I was hoping to get some help with. Here's a quick timeline for context:

2012 - 2013

I arrived in the UK with my long time girlfriend on a Tier 4 visa, as I was doing a 1 year Master's program. I entered as an American and paid the overseas tuition fees for my course. During my course, I was working at the school library, close to 20 hours a week. When my studies came closer to the end date, and my workload increased, I cut back my hours almost entirely from July 2013 to September 2013. My course ended in September and I began working sporadically with my former tutor as an assistant. The hours were minimal, and I was actively seeking employment simultaneously.

My girlfriend, on the other hand had been working as a teacher from the start and was able to get sponsored on a Tier 2 Visa. We both switched from my Tier 4 visa status and into Tier 2 in January 2014.

2014

At the start of the year, I obtained an internship and in March, I was hired to work with them. This has continued until present.

2015

In April, my long time GF and I got married. In October 2015, I was recognised as an Italian citizen through lineage, so I've been an Italian citizen since birth.

2016

In February, my wife and I applied for an EEA (FM) and EEA (QP) residence card, respectively. She has since found a new job (sans sponsorship), so our official Tier 2 status will discontinue in September.

With the upcoming EU Referendum, doubts have been swirling through our minds, as I'm sure most on this board can relate to. My question is: When did I start exercising my EU treaty rights? I am interested in eventually applying for PR, if that will still be possible.

Due to the fact that my Italian citizenship began at birth, does that mean that I started exercising treaty rights when I took up my Master's course? I did not have CSI, 1.Because I was doing my course as an American and paying overseas fees, and 2. I did not know that was needed.

Could I then prove that I was exercising my treaty rights as a student due to the fact that I was working close to 20 hours a week? If so, what happens to the time from July to September 2013, and then September 2013 to January 2014 when I wasn't working as much, but I was earnestly searching for a job? Does the clock toward PR then reset?

My only firm clock that I go by at the moment is when I started working full time at my current job, which was March 2014. However, do you guys have any advice on how, or if, I might be able to put some extra time onto that clock based on my history in the UK?

Thanks in advance for your time.

[secret.simon]

To apply for PR under the EEA Regulations, you need to have five continuous years of exercising treaty rights.

Treaty rights include
a) "Genuine and effective" work. "Marginal and ancillary" work is discounted. Work can be either employment or self-employment.
b) Seeking work. Proof required, such as being regietered as a jobseeker at a Job Centre or email trails of applications, interview calls, etc.
c) Student if the applicant held either a non-UK EHIC card or CSI while a student or held a Residence Card issued to him/her as a student before 2011.
d) Self-sufficiency, provided the applicant held CSI for him/herself and all members of their family.

Using these definitions provided above, can you reconstruct your history into a continuous period of exercising treaty rights? You can mix-and-match categories, but the period must be continuous and you must have documentary proof of each category.

Also, what proof do you have of your Italian citizenship before October 2015?

[noajthan]

You can get a steer on how a caseworker will assess and weigh your case from this internal HO guidance:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see pages 11+ & 25+ for assessing workers & students, respectively.

See page 47+ for details on assessing applicants for acquisition of PR status. Note the identity requirements.

[the3rdman]

Thanks noajthan,

I can get a certificate from the Italian authorities that states that I've been Italian since birth.

I can also piece together a continuous period, I'll have to look specifically. However my main concern is the period from July to September 2013, where I was focused on school work. Will those 2 months reset the clock?

[noajthan]

Thanks noajthan,

I can get a certificate from the Italian authorities that states that I've been Italian since birth.

I can also piece together a continuous period, I'll have to look specifically. However my main concern is the period from July to September 2013, where I was focused on school work. Will those 2 months reset the clock?

If you can show you are a Union citizen that is clearly in your favour.

But yes, studying without CSI/foreign-EHIC (or some sort of overseas health cover that applies in UK too) means your PR clock will not have been running at that time.

You may be considered to have been a worker at the time - or maybe not. There are examples on that aspect in the document I linked (above).

As secret.simon also intimated, its all about the economic activity being genuine/effective versus marginal/supplementary.

Any other gaps when not a qualified person (in an EU context) will be problematic too.

[the3rdman]

Thanks again.

The economic activity that I did do was genuine and effective, as far as I know. 18-20hrs per week.

So, if there is a gap, can the clock stop and then pick up again at a later date, still counting towards the 5 continuous years and retaining the previous accruement? Or does the continuation need to show no gaps whatsoever?

[noajthan]

Thanks again.

The economic activity that I did do was genuine and effective, as far as I know. 18-20hrs per week.

So, if there is a gap, can the clock stop and then pick up again at a later date, still counting towards the 5 continuous years and retaining the previous accruement? Or does the continuation need to show no gaps whatsoever?

Maybe. You may have to show the student activity was more marginal and supplementary in comparison.
And you will need rock-solid documentary supporting evidence (as is the case for the whole 5 year qualifying period ofcourse).

The fact that you have been here on a Tier 4 visa somewhat belies and argues against your worker status. HO will ofcourse be aware of that visa (noted in their CID databank).

Gaps when you are not a qualified person will stop your PR clock and reset it to zero.
So no gaps whatsoever.
(Anecdotally, the odd few days or week may be disregarded by a caseworker. Don't bank on it).

You can ofcourse switch between categories of qualified person.

Absences from UK are permitted and do not stop the PR clock if under 6 months in a 12-month period. (We're not Philistines, people are allowed some respite from British weather).

Here's one problem area you will need to work on:

I cut back my hours almost entirely from July 2013 to September 2013. My course ended in September and I began working sporadically with my former tutor as an assistant. The hours were minimal, and I was actively seeking employment simultaneously.

The subsequent internship may be another.

Were you a registered jobseeker? (ie registered at JobCentre, application letters, interview letters, job offers in writing, the full monty).

Worst case: you have been a worker qualified person since March 2014.

[secret.simon]

Errr, continuous means continuous. No gaps.

Can you claim that you were job seeking for the period of July to September 2013? Any job applications, emails of interviews lined up, etc?

[Seder]

Can someone please explain what marginal and ancillary work really means? If someone was working as a Lunchtime Supervisor in a school for 5 years, doing around 8hrs a week, would that be discounted as "work" when they tried to exercise their treaty rights?

[noajthan]

Can someone please explain what marginal and ancillary work really means? If someone was working as a Lunchtime Supervisor in a school for 5 years, doing around 8hrs a week, would that be discounted as "work" when they tried to exercise their treaty rights?

Its explained in the linked document (above) and comes from EU law.

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.

However the UK plays hardball and, somewhat controversially, applies its own MET/PET tests to decide what it thinks is viable work.
This approach is not necessarily compliant with EU law.

See also https://www.freemovement.org.uk/using-m ... ne-worker/

[the3rdman]

Errr, continuous means continuous. No gaps.

Can you claim that you were job seeking for the period of July to September 2013? Any job applications, emails of interviews lined up, etc?

Yeah, I have a vague sense of what continuous means, just wanted to double check on the details. Hopefully it's sufficient for you that I make sure that I cover all ground, and don't have any GAPS in my reasoning. You should know, the UKVI does adhere to some weird interpretations.

Regarding your 2nd question: Not at that time, no. Just part time work. Applications started going out in September 2013. Did not register with JobsCentre, but do have emails to prove that I was looking for work.