Preparing for Brexit as a Student (PR,CR)

[LukasFre]

Hi,

I would highly appreciate your advice on the following questions regarding an application for PR (I've looked around and the available expertise is really impressive!).

My status/residence history in the UK is as follows:
- German (and Swiss) nationality
- Oct 2012-Jun/Jul 2015: Student in the UK (Home/EU Status)
- Aug 2015-Jul 2016: Full-time employed
- Since Oct 2016 (until Jul 2018 or in case of progress to Dphil) potentially 2020/21): Student in the UK

Now, with added urgency due to Brexit, I am looking at options to assure my status here in the UK. Optimally, I'd like to apply for permanent residence in Oct 2017, i.e. 5 years after entry here in the UK. If that's not possible (see below), then a residence certificate (CR) would be a first step, as I hope to benefit from transitional arrangements that might form part of the deal.

However, as so many other people, I was entirely unaware of the need for Comprehensive Sickness Insurance Cover (SCIC) in the context of applications for PR/CR. I never received any indication whatsoever that this might be necessary*. During my one year of employment I had private health care insurance, but apart from that I just relied/rely on the NHS.

In short,
i. Am I correct to think that the past few years are void in terms of an application for PR or can I somehow rescue things?
ii. For a CR application, would it be sufficient (and necessary) to obtain SCIC now?

Thanks a lot in advance!

Lukas

Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988 even states:
If an EEA national enters the UK and is not involved in an economically active activity, for example because she is a student, her residence and that of her family members will not be lawful unless she has CSIC.
But that is very confusing, as my status here is certainly not unlawful.

[secret.simon]

Compliments to you on doing your research. Research skills will come in very handy for your Masters or DPhil (which, by the bye, suggests that you are studying at Oxford).

For time as a student to be counted as lawful for the purposes of PR, you would have needed either CSI or a non-UK EHIC Card. Did you have the latter?

Also, some German students on these forums have suggested that they got a letter from their insurance providers back home that they were covered for sickness purposes even in the UK and used that letter as a standin for CSI. You may wish to look into that.

If all these (UK CSI, German/Swiss insurance covering you in the UK or a non-UK EHIC Card) are not available as options, you will not be able to count any period of study for the purpose of PR.

BTW, the requirement for CSI is there in the original EU Directive itself (from 2004), so not something that the UK dreamt up or a later addition.

Remember that you need five continuous years of exercising treaty rights. So, if you do not have CSI at the moment, your clock will have reset back to zero and will restart when you either start working again or get CSI while a student.

that is very confusing, as my status here is certainly not unlawful.

Technically, from a legal point of view, if you do not have CSI (or a non UK EHIC card) while being a student, you are unlawfully in the UK. Your presence in the UK is only lawful if you are exercising very specific treaty rights. Mere presence and holding EEA citizenship does not make it lawful.

[LukasFre]

Thanks a lot, secret.simon! This legal idiosyncracy (which it looks to me despite having been in the 2004 directive) is still very surprising to me, insofar as probably a large share of the non-British EU student body here in the UK does not formally have legal residence. Indeed, having spoken to a few fellow German students here (yes, in Oxford), no one has SCIC (and apart from one, no one had an EHIC either).

One further question if I may (see ii. above): Suppose I obtain SCIC now. Would I then be immediately be in a position to apply for a residence certificate?

Thanks,
Lukas

[noajthan]

You evidently weren't a student during/before 2011 so won't have had a RC issued to you as a student - which would have got you off the hook due to a transitional arrangement.

Only hope is for any evidence of health cover that somehow covered you from home country whilst you were in UK.
Or, extreme longshot, did you have any Union citizen relative exercising treaty rights in UK (at same time as you were in UK) who could be considered your sponsor?

Otherwise, yes, your presence (whilst a student) has been unlawful.
Don't be too hard on yourself, you aren't the first, won't be the last (and what a story to tell your grandchildren).

With all wild talk of Brexit, suggest get some CSI in place and apply for a RC asap.

[LukasFre]

Thanks, noajthan! I haven't had health insurance in Germany nor relatives here, no.

Admittedly to my relief, it appears that I'm *not* unlawfully here, I just don't exercise my Treaty rights.

Point 18 of https://www.gov.uk/government/uploads/s ... ent-uk.pdf

However, it is very important to note that an EEA national who is not exercising Treaty
rights and does not otherwise have a right of residence under the Directive will not automatically
be considered to be in the UK unlawfully. Therefore an EEA national who is not residing in
accordance with the Directive may still be considered to be ordinarily resident, provided that
they meet the other requirements of that test. The relevant question to consider is if they are properly settled in the UK for the time being, and not are they exercising Treaty rights, or do they have a right to reside or a permanent right to reside. Paragraphs 20-29 must be read in this context.

[noajthan]

Thanks, noajthan! I haven't had health insurance in Germany nor relatives here, no.

Admittedly to my relief, it appears that I'm *not* unlawfully here, I just don't exercise my Treaty rights.

Point 18 of https://www.gov.uk/government/uploads/s ... ent-uk.pdf

...

Lack of CSI (as a student) means someone is not a qualified person under EU law as transposed in to UK EEA Regulations.

Different government departments have their own take on this. Don't expect joined-up thinking.
Eg NHS versus DWP.
The one that matters may be HO if anyone has ambitions for citizenship.

[secret.simon]

Thanks a lot, secret.simon! This legal idiosyncracy (which it looks to me despite having been in the 2004 directive) is still very surprising to me, insofar as probably a large share of the non-British EU student body here in the UK does not formally have legal residence. Indeed, having spoken to a few fellow German students here (yes, in Oxford), no one has SCIC (and apart from one, no one had an EHIC either).

This could be the perfect scary surprise for them for Halloween. That should also jolt them into getting CSI and applying for a Residence Certificate. Also worth chatting with other EEA students through the Student Union and who knows, the Student Union could negotiate a special CSI deal for EEA students with one insurance provider. Worth suggesting to the Student Union to make it a part of the welcome pack.

One further question if I may

(In my best Downton Abbey accent) Yes, you may. Does make you sound like Oliver Twist.

Suppose I obtain SCIC now. Would I then be immediately be in a position to apply for a residence certificate?

Yes, provided you remain a student, you should be able to apply for a Residence Certificate on getting CSI. Make sure to keep the CSI going for the entire duration of your studies.

Different government departments have their own take on this.

You (the OP) yourself pointed out a judgment that states that the residency of an EEA student without CSI is unlawful.

It is not just government departments. Remember that different rights for EEA citizens are governed by different directives and regulations from Brussels. So, your rights as regards medical needs are not related to your rights as regards permanent residence or either of those to benefits. Thus, the NHS, the DWP and the Home Office can all have different definitions of eligible EEA citizens.

[LukasFre]

Thanks a lot, both!

@secret.simon: I hope my use of antiquated yet stereotypically British phraseology will help my case should I ever apply for naturalisation...

[secret.simon]

@secret.simon: I hope my use of antiquated yet stereotypically British phraseology will help my case should I ever apply for naturalisation...

I know where you are coming from. I have been on a similar journey myself (though I am non-EEA and can only dream of a DPhil from Oxford). It has often been joked that I was British way before I left the shores of my country of origin. I occasionally sound like an escapee from an Edwardian library myself, so I empathise. And thence the Downton Abbey touch.

Unfortunately the Home Office caseworkers have neither the time nor the education to appreciate subtleties like these. One of the members on these forums, Ohara, was treated just unsympathetically as everybody else in spite of being raised in the UK and having a British mother (if my memory serves me correctly).

[LukasFre]

Unfortunately it'd be difficult to implement a system that appreciates such subtleties, as you put it, whilst simultaneously being operational (and fair!). Either way, of course, I wasn't being serious as regards the prospects of advancing my case by using Downton abbey style language