Are Irish students required to hold CSI?

[IrishFormerStudent]

Hello all, long time reader (the people answering questions are providing a fantastic public resource btw!) first time poster here.

I am an Irish citizen who came to the UK immediately after finishing school in Ireland in 2003, worked for a few months, then started a degree course. I was a student for the following 10 years, with one short period of full-time work (3 weeks) and a couple of weeks on jobseekers allowance between courses, and then a lot of part-time work alongside my studies more recently. I started working full-time in 2013. I have lived in the UK since I first arrived, apart from going back to Ireland for around 2 months after my first year of study in 2004.

My wife is a non-EEA national, back in 2011 she applied for a Residence Card as my unmarried partner. This application was at first rejected because they said I needed CSI, so I went out and bought a random CSI policy so that she would get the residence card.

Her application for permanent residence has recently been refused because we did not supply evidence of CSI for the period when I was a student - I could probably supply evidence of CSI for some of the time but there would still be a gap of around 15 months where I don't think I can do so.

I have been reading up on this and my first thought was for her to apply for another Residence Card. My understanding is that this should not be a problem as I am currently exercising treaty rights as a worker. As a first question, it would set my mind at ease if you could tell me whether the refused PR is likely to affect an application for a second RC?

Now, I am wondering if the fact that I'm Irish and have lived here since 2003 might mean I didn't need CSI (or could rely on the NHS) and could therefore argue that I was exercising my treaty rights for those five years and my wife would be granted PR now.

Something I read and considered the first time around with the residence card application was the special relationship between UK and Ireland due to the Common Travel Area. It is my understanding that I have had "settled status" or permanent leave to remain since I first came to the UK to live - simply because I'm Irish and I live here.

My main question is: do you think I could challenge the refusal of PR on these grounds?

Or, more generally, do Irish students who come to the UK to study require CSI in order to be considered to be exercising their treaty rights?

[noajthan]

Hello all, long time reader (the people answering questions are providing a fantastic public resource btw!) first time poster here.

I am an Irish citizen who came to the UK immediately after finishing school in Ireland in 2003, worked for a few months, then started a degree course. I was a student for the following 10 years, with one short period of full-time work (3 weeks) and a couple of weeks on jobseekers allowance between courses, and then a lot of part-time work alongside my studies more recently. I started working full-time in 2013. I have lived in the UK since I first arrived, apart from going back to Ireland for around 2 months after my first year of study in 2004.

...

I have been reading up on this and my first thought was for her to apply for another Residence Card. My understanding is that this should not be a problem as I am currently exercising treaty rights as a worker. As a first question, it would set my mind at ease if you could tell me whether the refused PR is likely to affect an application for a second RC?

Now, I am wondering if the fact that I'm Irish and have lived here since 2003 might mean I didn't need CSI (or could rely on the NHS) and could therefore argue that I was exercising my treaty rights for those five years and my wife would be granted PR now.

Something I read and considered the first time around with the residence card application was the special relationship between UK and Ireland due to the Common Travel Area. It is my understanding that I have had "settled status" or permanent leave to remain since I first came to the UK to live - simply because I'm Irish and I live here.

My main question is: do you think I could challenge the refusal of PR on these grounds?

Or, more generally, do Irish students who come to the UK to study require CSI in order to be considered to be exercising their treaty rights?

Welcome.
Yes its a great resource, and active 24*7, on bank holidays too. (Try getting any other form of representation out of bed or off the golfcourse on a bank holiday).

As you are Irish you are effectively settled in UK due to CTA.
So you can just live your life in UK as, for example, my uncle from Achill Island has done for 50 years or more.
It doesn't mean that you have PR as per EU law.

If you want to be treated as a Union citizen and sponsor your wife under EU law and the Directive then yes, my understanding is you need to have had CSI in place in order to be categorised as a student qualified person.

If you did not have CSI (or alternative) then you were not a qualified person for the 10+ years as a student. Therefore, by not exercising treaty rights, you could not sponsor a family member.
So your wife had no basis to reside/work/study in UK during your carefree student years (except for the brief period when you had bought CSI).

A RC is no help here; it is essentially only valid on day of issue, and, as you say, you let the CSI go once you had done what you thought was necessary.
If you had maintained that CSI then wife could have acquired the holy grail of PR by now.

As you started work in 2013 then your PR clock should now be running (on behalf of your wife - you don't need PR being Irish).
So if you remain married and don't enjoy any prolonged absences from UK your wife should acquire PR by 2018 or thereabouts.

Fortunately, with the delay in triggering Article 50 and one thing and another, UK should still be in EU in 2018 so your wife should be home and dry by then.

And no, a failed PRC application doesn't prejudice a RC application or another shot at PRC in due course.
With all this wild talk of Brexit, probably worth getting a RC in the bag for now.

[IrishFormerStudent]

Many thanks for your reply noajthan, I had a feeling this might be the case.

I have one follow-up question about the COAs, from reading here it seems that some people get COA with approval for work and others don't, are there any set criteria that determine this?

The reason that I ask is that my wife is currently employed and her previous RC ran out while the PR application was processing. In a few weeks the temporary approval she was granted by the last COA will run out, I am anxious that the next COA might not say she has approval to work, or we might not receive it before the last one runs out.

If that were the case, would there be any risk she could lose her job? I'm not sure how much companies have to rely on the COAs, or whether it would be possible to demonstrate to her employer that her right to live and work here is still in effect because we are still married and I am still exercising my treaty rights. Any light you can shine on this would be much appreciated.

[noajthan]

Many thanks for your reply noajthan, I had a feeling this might be the case.

I have one follow-up question about the COAs, from reading here it seems that some people get COA with approval for work and others don't, are there any set criteria that determine this?

The reason that I ask is that my wife is currently employed and her previous RC ran out while the PR application was processing. In a few weeks the temporary approval she was granted by the last COA will run out, I am anxious that the next COA might not say she has approval to work, or we might not receive it before the last one runs out.

If that were the case, would there be any risk she could lose her job? I'm not sure how much companies have to rely on the COAs, or whether it would be possible to demonstrate to her employer that her right to live and work here is still in effect because we are still married and I am still exercising my treaty rights. Any light you can shine on this would be much appreciated.

FMs generally receive a COA confirming a right to work.
EFMs generally do not.

Whether HO accepts documents as being genuine or full and complete has a bearing on this too.
As well as whether the applicant had a previous right to work eg by virtue of a FP.
And (perish the thought) HO caseworkers are only human and may make mistakes from time to time.

Yes, employers can and do terminate the employment of good, hard-working people. You may dig into the forum to find very recent tales of anguish.
In their role as unpaid (untrained, unqualified) 'proxy immigration officials', employers face eye-watering punitive fines if they employ illegals. So they may not chance it.

Some members have reported quoting the Directive at employers until blue in the face;
sadly it rarely cuts little ice in the current climate. Its the COA that is needed.

You can get up to speed on COAs here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 25+

[IrishFormerStudent]

Thanks for that. Our application ticks all the boxes, but we have not "provided" the applicant's passport because the Home Office kept it when the Permanent Residence application was refused. We included a covering letter explaining this and quoting the reference and case ID, hopefully that's enough to have "provided" it...

My wife had a previous right to work as a holder of a residence card, and the CoA for the Permanent Residence did give approval to work, so here's hoping... but this line gives me cause for concern: "Anyone issued with a ‘short’ COA due to their failure to submit the required evidence cannot later be issued with a ‘long’ COA if they submit this evidence."

[noajthan]

Thanks for that. Our application ticks all the boxes, but we have not "provided" the applicant's passport because the Home Office kept it when the Permanent Residence application was refused. We included a covering letter explaining this and quoting the reference and case ID, hopefully that's enough to have "provided" it...

My wife had a previous right to work as a holder of a residence card, and the CoA for the Permanent Residence did give approval to work, so here's hoping... but this line gives me cause for concern: "Anyone issued with a ‘short’ COA due to their failure to submit the required evidence cannot later be issued with a ‘long’ COA if they submit this evidence."

Case law of Barnett is your friend if any issue around the applicant's 'missing' passport, eg if one team in HO can't get sight of it from another team.
Ref https://www.gov.uk/government/uploads/s ... w_v2_0.pdf

Yes, and HO play hard ball, if, for example, the previous permission (FP, COA/RC) has expired.
Dealing with HO on immigration matters certainly makes you feel 'alive' and living on the edge!

[IrishFormerStudent]

Ouch, feeling quite anxious about all of this again now

The COA date given to her employer hasn't passed yet so should be ok on that front.

Just been looking over the previous COA, it says she has a right to work until her application is granted or, if refused, until her appeal rights have been exhausted. There's no mention on any of the correspondence of how long appeal rights last for - would that be until the date they gave her employer? If we were to appeal the refusal of PR would that extend the period for which she has approval to work, as the appeal rights would not be exhausted until that process had been completed?

Also, I'm guessing the right move is to update her employer on the refusal and the fact that we are applying for another RC now, rather than wait until we receive a new COA?

Not sure I understand the relevance of Barnett, that seems to be about providing the EEA national's passport, which we will do... the potential problem is that they're already holding the applicant's passport.

By the way, in the refusal letter should it say that they've withheld my wife's passport? I don't think our letter explicitly says this, and when we couldn't find her passport in the envelope I was worried that I may have dropped it when I opened it in town.

[noajthan]

Ouch, feeling quite anxious about all of this again now

The COA date given to her employer hasn't passed yet so should be ok on that front.

Just been looking over the previous COA, it says she has a right to work until her application is granted or, if refused, until her appeal rights have been exhausted. There's no mention on any of the correspondence of how long appeal rights last for - would that be until the date they gave her employer? If we were to appeal the refusal of PR would that extend the period for which she has approval to work, as the appeal rights would not be exhausted until that process had been completed?

Also, I'm guessing the right move is to update her employer on the refusal and the fact that we are applying for another RC now, rather than wait until we receive a new COA?

Not sure I understand the relevance of Barnett, that seems to be about providing the EEA national's passport, which we will do... the potential problem is that they're already holding the applicant's passport.

By the way, in the refusal letter should it say that they've withheld my wife's passport? I don't think our letter explicitly says this, and when we couldn't find her passport in the envelope I was worried that I may have dropped it when I opened it in town.

Worry about having to use Barnett if/when it gets that bad; (Barnett also relates to the passport of the applicant not just the EEA national).

As to whether you dropped the passport and about HO practice on notifying confiscation or retention of documents - I just don't know.

In terms of the employer, it may be prudent to adopt a 'don't ask don't tell' policy.
How do you imagine HR will react if you mention this upfront?!

Appeals can drag on for months or a year or more. So if you are in an appeal process prepare for the long haul.

[IrishFormerStudent]

Can we appeal the PR decision while they're processing the RC application? Before your first reply I was feeling cautiously optimistic about the chance of appealing based on my "special circumstances" (being Irish) - which I feel does entitle me to rely on the NHS as CSI, even if nationals from other EEA states can not. I find the idea that I don't have "permanent residence" after living here for 13 years really counter-intuitive, it just doesn't make sense to me.

[IrishFormerStudent]

From the COA it sounds like an open appeal keeps the approval to work going, it says the approval stands until "all rights of appeal have been exhausted" in the case of a refusal. For some reason I suspect that we couldn't appeal the PR refusal without that affecting the RC application, but maybe I'm just being pessimistic based on past experience of how all this stuff works

[Richard W]

In terms of the employer, it may be prudent to adopt a 'don't ask don't tell' policy.
How do you imagine HR will react if you mention this upfront?!

To reinforce this point for the OP's benefit, there may be a problem because of a change in the law last month. Before, an employer could only be prosecuted (with a possible prison sentence for the officer of a company) if he knew that an employee had no right to work. Now, an employer can be prosecuted if he had reasonable cause to believe that an employee had no right to work. That seems to have made some HR departments jittery. Be kind to them and don't tell them things they don't need to know.

The law regarding liability to large fines for employing illegal workers has not changed, though the fine has fairly recently doubled to £20,000. Having reasonable cause to believe the employee had the right to work is not a defence; the only defences are that (1) the employee actually had the right to work, or (2) the employer was shown and properly recorded prescribed documents indicating that the employee probably had the right to work.

[noajthan]

Can we appeal the PR decision while they're processing the RC application? Before your first reply I was feeling cautiously optimistic about the chance of appealing based on my "special circumstances" (being Irish) - which I feel does entitle me to rely on the NHS as CSI, even if nationals from other EEA states can not. I find the idea that I don't have "permanent residence" after living here for 13 years really counter-intuitive, it just doesn't make sense to me.

Using NHS is not an alternative to CSI or granting someone CSI.
CSI is insurance.
The need for CSI is to avoid economically inactive persons (students, selfsufficient) being an undue burden on the host state.

You have settled status (outside EU law) because of CTA.
So you, as an Irish citizen, have a right to be in UK, use NHS, pay into/draw a pension etc etc.

As a Union citizen (from EU) you don't have PR status under EU law (transposed into UK law) due to your lack of CSI during some/all of your student years.
Now you are a qualified person (worker) under EU law you can sponsor your spouse as a direct FM by virtue of free movement and Directive 2004/38/EC.

I don't know on what grounds you can appeal that refusal of confirmation of PR as HO appears to have applied the EEA Regulations.
And I don't know if you can file a RC application whilst appealing the PR decision. You'd have to read your refusal letter for any options.

Do not deceive the employer but don't expect much sympathy if you have to spill the beans.

[IrishFormerStudent]

In terms of the employer, it may be prudent to adopt a 'don't ask don't tell' policy.
How do you imagine HR will react if you mention this upfront?!

To reinforce this point for the OP's benefit, there may be a problem because of a change in the law last month. Before, an employer could only be prosecuted (with a possible prison sentence for the officer of a company) if he knew that an employee had no right to work. Now, an employer can be prosecuted if he had reasonable cause to believe that an employee had no right to work. That seems to have made some HR departments jittery. Be kind to them and don't tell them things they don't need to know.

The law regarding liability to large fines for employing illegal workers has not changed, though the fine has fairly recently doubled to £20,000. Having reasonable cause to believe the employee had the right to work is not a defence; the only defences are that (1) the employee actually had the right to work, or (2) the employer was shown and properly recorded prescribed documents indicating that the employee probably had the right to work.

Thanks Richard. What if the employer asks how the application is going? Would you advise saying it is still pending?

Regarding your second point - in this case that seems fairly easy to demonstrate, they would just need to see proof that I'm an EEA citizen and that I work in the UK, and that we're married... my birth certificate, our marriage certificate, and a letter from my employer should in principle be enough evidence to indicate that the employee "probably had the right to work"... or does "prescribed documents" mean RC/PR or documents of that type only?

[noajthan]

...

Some members have reported quoting the Directive at employers until blue in the face;
sadly it rarely cuts little ice in the current climate. Its the COA that is needed.

...

If as easy as showing marriage certificate why would anyone need a COA.

One member even reported how he introduced his EEA wife to HR department.
It means nothing to them. All they see is £££ fines and prison bars.

[IrishFormerStudent]

If as easy as showing marriage certificate why would anyone need a COA.

One member even reported how he introduced his EEA wife to HR department.
It means nothing to them. All they see is £££ fines and prison bars.

Fair enough, thanks for all your help.

[Richard W]

What if the employer asks how the application is going? Would you advise saying it is still pending?

Stick to a true and comprehensible answer, preferably one you could back up from the refusal letter. Basically, your wife applied for the wrong type of card. Your wife may need to appear to have been honest if she sues for unfair dismissal or suspension. (There is no justice in such a situation, neither for her nor her employer.) Your immediate problem is that it takes just under a month from RC application to receipt of CoA, so you may not get the new CoA before the old one expires. I don't know the response times for a new CoA for an appeal. Getting a new CoA by appealing is the only reason to appeal - you will lose your appeal on the basis of what you have told us.

Regarding your second point - in this case that seems fairly easy to demonstrate, they would just need to see proof that I'm an EEA citizen and that I work in the UK, and that we're married... my birth certificate, our marriage certificate, and a letter from my employer should in principle be enough evidence to indicate that the employee "probably had the right to work"... or does "prescribed documents" mean RC/PR or documents of that type only?

No, the "prescribed documents" are a formal requirement. The "probably" refers to what they actually demonstrate. For example, when your CSI expired, your wife ceased to have any (EEA) right to be in the UK (except for any periods of 3 months immediately following your return from abroad), let alone work, until you started work. However, she was still in possession of the appropriate "prescribed documents".

Now, it is just possible that you made sufficiently frequent trips abroad (e.g. to the Republic) that, during the entire time your CSI had expired but you were not working, you were enjoying an 'initial 3 months of residence'. (EEA Regulation 19(1AB) provides a power to stop such a practice - but it couldn't apply to you when you came from the Republic!) In that case, I believe your wife would actually have achieved PR. However, I believe your immediate aim should be to get your wife a CoA and an RC, and then worry about getting PR.

[Richard W]

EEA Regulation 19(1AB) provides a power to stop such a practice - but it couldn't apply to you when you came from the Republic!

For general information, this loophole was plugged in 2014. Entry bans (terminology?) under the EEA Regulations now also explicitly apply to entry from the Republic - new Article 3(1)(b)(v) in The Immigration (Control of Entry Through Republic of Ireland) Order 1972.

[IrishFormerStudent]

Thanks again, all of this advice is much appreciated!

I've just been reading some old posts from 2013 and people are referring to the requirement for CSI coming in in 2011... is that true? I thought it dated back to 2004?

If CSI wasn't required until 2011 I would easily have acquired PR before that due to being a student residing here since 2003. Whether I could provide sufficient evidence for a five year period going back that far at this stage, is another question.

[noajthan]

Thanks again, all of this advice is much appreciated!

I've just been reading some old posts from 2013 and people are referring to the requirement for CSI coming in in 2011... is that true? I thought it dated back to 2004?

If CSI wasn't required until 2011 I would easily have acquired PR before that due to being a student residing here since 2003. Whether I could provide sufficient evidence for a five year period going back that far at this stage, is another question.

Its always been required as per EU law.
UK started enforcing the requirement in UK in 2011.
And now they backdate the requirement.

If you have no CSI (and no valid alternative) and you cannot avail of the transitional arrangement put in place in 2011 then its tough buns and hard lines.

Did you have a RC issued to you as a student during/before 2011?

You can dig into these critical matters here:
https://www.whatdotheyknow.com/request/ ... issued.pdf

[Richard W]

I've just been reading some old posts from 2013 and people are referring to the requirement for CSI coming in in 2011... is that true? I thought it dated back to 2004?

The legal requirement (assuming it is valid) was there from the beginning. However, it wasn't enforced until 2011. I don't know what has happened to the Commission's infringement action against the requirement, or more precisely the refusal to accept being covered by the NHS as sufficient. Are they holding fire in case there's a second referendum?

[IrishFormerStudent]

I've had another hopeful thought about how we might already qualify for PR... or reason to believe that the system is hopelessly illogical.

In the link Richard gave (https://www.whatdotheyknow.com/request/ ... issued.pdf) the document says 20th June 2011 is a kind of cut-off, if someone has a residence card issued to them as a student before this date then they can claim time they resided here as a student before that date towards PR. Unfortunately I do not have a residence card issued before 20th June 2011 (why would I have thought to get one? As an Irish citizen my right to live here was never in question).

My wife's previous Residence Card was issued before 20th June 2011, on the basis that she was my wife and I was exercising treaty rights as a student. As I understand it, the process they went through to issue her this residence card incorporated exactly the same checks they would have made if issuing me with the residence card. Therefore I could claim that the granting of this RC for her is equivalent to the granting of RC to me, in terms of acting as evidence that I exercised treaty rights as a student here before 20th June 2011 - in which case I could still claim that I had already acquired PR status before the requirement for CSI was introduced.

On another note, the infringement action Richard W refers to is one of the reasons why I thought the CSI requirement might just be shaky enough that I could challenge it on appeal based on the fact that I'm Irish and therefore have even more of a right to rely on the NHS (as or in lieu of CSI) than other European nationals.

[noajthan]

I've had another hopeful thought about how we might already qualify for PR... or reason to believe that the system is hopelessly illogical.

In the link Richard gave (https://www.whatdotheyknow.com/request/ ... issued.pdf) the document says 20th June 2011 is a kind of cut-off, if someone has a residence card issued to them as a student before this date then they can claim time they resided here as a student before that date towards PR. Unfortunately I do not have a residence card issued before 20th June 2011 (why would I have thought to get one? As an Irish citizen my right to live here was never in question).

My wife's previous Residence Card was issued before 20th June 2011, on the basis that she was my wife and I was exercising treaty rights as a student. As I understand it, the process they went through to issue her this residence card incorporated exactly the same checks they would have made if issuing me with the residence card. Therefore I could claim that the granting of this RC for her is equivalent to the granting of RC to me, in terms of acting as evidence that I exercised treaty rights as a student here before 20th June 2011 - in which case I could still claim that I had already acquired PR status before the requirement for CSI was introduced.

On another note, the infringement action Richard W refers to is one of the reasons why I thought the CSI requirement might just be shaky enough that I could challenge it on appeal based on the fact that I'm Irish and therefore have even more of a right to rely on the NHS (as or in lieu of CSI) than other European nationals.

The universe spoke to you back in 2011 on your first refusal of RC for your partber;
that was the time to do all this research and understand the significance of having CSI for the long haul and not just for the short-term win of a RC.

You do not have a Residence Certificate as a qualified person, that is what the caseworker will be looking for.
You don't get the benefit of doubt. Nor will you be rubberstamped through.

If you read the terms of the ta you will note that even a RC issued to a worker is not enough, it has to have been issued to a student;
your wife counts as neither as she was not a qualified person.

You would have got a RC if you had known the benefits its confers (such as being able to invoke a transitional arrangement); the HO will be indifferent as to whether you bothered to apply for one or not.

The cases driven by Aire Centre and others have all failed to date;
NHS usage is not a replacement for CSI.
After all CSI is required so that economically-inactive persons are not an undue burden on NHS so how could anyone use access to NHS to show that.

Full marks for trying but you have not acquired PR yet as you were not a qp because you did not have CSI as a student.
Your PR clock was stopped at that time.

You had(/have) a right to be in UK anyway (under auspices of CTA) but your wife had no right to reside in UK during the time she was with you and you were a student but neither of you had CSI cover.

Using NHS as a right by being Irish does not make you into a qualified person under EU law (as transposed into UK law) and it does not transmute into wife gaining PR 'automatically' under EU law.

[Richard W]

Unfortunately I do not have a residence card issued before 20th June 2011 (why would I have thought to get one? As an Irish citizen my right to live here was never in question).

Because you were claiming the privileges of an EEA national? Incidentally, if you travelled from outside Ireland direct to the UK, your privileges purely as an Irishman then had no basis in law - you had no more rights than a Cypriot.

My wife's previous Residence Card was issued before 20th June 2011, on the basis that she was my wife and I was exercising treaty rights as a student. As I understand it, the process they went through to issue her this residence card incorporated exactly the same checks they would have made if issuing me with the residence card. Therefore I could claim that the granting of this RC for her is equivalent to the granting of RC to me, in terms of acting as evidence that I exercised treaty rights as a student here before 20th June 2011 - in which case I could still claim that I had already acquired PR status before the requirement for CSI was introduced.

I don't know the precise nature of the transition, but you said in your opening post that they did check and refused her for lack of CSI:

My wife is a non-EEA national, back in 2011 she applied for a Residence Card as my unmarried partner. This application was at first rejected because they said I needed CSI, so I went out and bought a random CSI policy so that she would get the residence card.

They can quite reasonably treat your wife as having ceased to be lawfully resident when you chose not to renew the CSI. They have never ignored the lack of CSI of either of you.

On another note, the infringement action Richard W refers to is one of the reasons why I thought the CSI requirement might just be shaky enough that I could challenge it on appeal based on the fact that I'm Irish and therefore have even more of a right to rely on the NHS (as or in lieu of CSI) than other European nationals.

Unfortunately, the English courts support the government view on CSI. I'm not sure what the position is in the rest of the UK, but I suspect the view of the English Court of Appeal will be pretty persuasive. Any legal challenge will probably have to make it to the CJEU, and the UK has won against the Commission in the CJEU in benefit cases. (I suspect the issue won't be forced up to the Supreme Court.)

[noajthan]

(I suspect the issue won't be forced up to the Supreme Court.)

I concur.
I was chillin at the SC on Tuesday. Issues are never forced up to SC; the SC dines a la carte and cherrypicks the cases it wishes to hear.