Non EEA Residence card

[Adnanarshad]

Hello everyone, this is my 1st post on this website regarding ( Residence card )

i have couple of questions if anyone can reply will be much appreciated

1st ( Im a Pakistani national married with polish national ) in June 2012 till present according to Permanent residency theory which is 5 year route i can apply for permanent residence in June 2017. but my visa will expire on march 2018...so my question is can i apply on that basis for permanent residence or i have to wait till my visa expires and apply before 28 days ??

2nd ( which is connecting to the 1st question ) my wife worked when we married and after an year and few months she stopped working due to birth of my son and she didn't work for almost 2 years and now she is back in work nearly for 2 years as a self employed...so my question is how can we fill that gap as she unable to work due to child care ( does it effect my permanent residence even if i apply in 2018 ) and if it does what should i do now ?

waiting for assistance from all of you thanks

[secret.simon]

Are you on a visa issued under the UK Immigration Rules or on a Residence Card issued under EEA Regulations?

Are you legally married to the Polish citizen? Or is it only a religious marriage, which may not be recognised as a legal marriage in the UK? Where did the marriage take place?

[Adnanarshad]

Im legally married in UK since June 2012 and Islamic Marriage in May 2012 also i have residence document 5 years visa from Home Office UK

[noajthan]

You don't have a 'visa'; there's no 28 day rule.

If spouse/sponsor was a qualified person you may have acquired PR by 2017.

As an A8 national did spouse register for WRS properly?

Any gap in sponsor exercising treaty rights will have stopped your PR clock.
(Maternity leave is permitted for workers but 2 years is a long time).

[secret.simon]

my wife worked when we married and after an year and few months she stopped working due to birth of my son and she didn't work for almost 2 years and now she is back in work nearly for 2 years as a self employed

That is the fly in the ointment.

An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.

Your wife need not have started working at the end of the 52 weeks, so long as she can prove that she had returned to the employment market (i.e. was a jobseeker with proof of emailing applications, job interviews, etc).

Even otherwise, if she was covered by private health insurance (CSI), she could claim to be a self-sufficient person.

If, however, she did not have CSI nor did she reenter the employment market at the end of the 52 week period, she broke the continuity of residence and your five year PR clock is reset to zero to when she restarted as a self-employed person.So, if she restarted working in June 2014 (for example), your clock would have restarted from zero at that point and you would get PR, assuming no further breaks, in June 2019.

To guide you further, can you provide us with the following information; when did your wife arrive in the UK, when did she start working, when did she start her maternity leave and when did she end the maternity leave?

[Adnanarshad]

Thanks all for your assistance....since all you know there will be changes coming in immigration after Brexit, and i am concern about my future life in UK, since my wife didnt work 2 years time and broken cycle, what if we make a compromise and apply for a Divorce and live as Partner together ? as i heard i can apply for Retain Right of residence does it matter if she didnt work for those 2 years ? also if i apply again for EEA2 after my visa runs out what are the chances to get visa as UK may start making changes when they will trigger artical 50 in march ? and what if they make changes before my visa runs out and since its so irritating applying again n again for VISA and spending money on refusels, solicitors and courts

[noajthan]

Bizarre plan.
And you have no 'visa'. Your life in UK depends on sponsor.

Even with ROR your PR clock only started when wife became qp again by starting work.
So stay married, keep wife hard at work, acquire PR in 5th year of her work.

[Adnanarshad]

so you means, that after divorce Home office will issue me anything on the basis of my sponsor if she/he worked for continuously 5 years or not ? since what my observation from different websites even on UK govt website it says 3 years of civil marriage, plus exercising treaty right applying before divorced and maybe prove of living relationship for 3 years since my marriage is for about 5 years in June 2017.

[noajthan]

I gave an example based on if you don't divorce as there's no obvious benefit nor any speed up in overall timings from divorcing;
and divorcing purely for immigration purposes seems bizarre (just as marrying for such reasons would be).

[Adnanarshad]

sure i agree with you, but all my concerns were due to brexit as its so much uncertainty anyhow what if i go for EEA2 again, Home Office wouldn't bother why i didn't apply for permanent residency ? and how early i can apply for EEA2 again,as normally they answer in 6 months time it took me 1 year to get a visa from them before also it may effect my employment or no?

[zahmed05]

Hi,

You need to realise that you haven't got a 'visa'. Residence card is just a confirmation of your status in the UK. It's invalid if your sponsor's circuimstances changes. E.g. Leaving uk or stop working.

Home office will clearly not bother about you not applying for PR as you don't qualify.

You can apply for another EEA2 anytime and submit proves of work for last few years along with necessary documents. If successful, you may have RC issued for next 5 years which is just a confirmation of the status. Once you have proof of work for 5 consecutive years then go for PR.

Uk is bound to adhere by EU laws unless we formally leave. The notification in march is start of negotiations and status of EU nationals is not confirmed so don't waste energy on that.

Divorce wont help here ..

[ohara]

sure i agree with you, but all my concerns were due to brexit as its so much uncertainty anyhow what if i go for EEA2 again, Home Office wouldn't bother why i didn't apply for permanent residency ? and how early i can apply for EEA2 again,as normally they answer in 6 months time it took me 1 year to get a visa from them before also it may effect my employment or no?

You don't apply for permanent residence, it is automatic once the requirements are met.

Please get it into your head that you do not have a visa; your rights in the UK are entirely dependent on your sponsor's economic status, the RC is just proof of those rights and although the card has a 5 year validity, if your sponsor stops being a qualified person or leaves the country or something like that, your RC becomes invalid and you lose the right to remain in the UK.

[Adnanarshad]

Thank you all for your useful advices....i know my status depend on my sponsor, as i am depended, and term visa im using again and again becz its allowing me to enter and exit , sorry if im quoting mistakenly but the argument which ZAHAMED05 and OHARA talking about i have some concerns.....like you both are mentioning in your comments that......NON EEA applicant will loose his/her rights if sponsor left UK or Stopped working. so you meant to say when my wife stopped working when she gave a birth to my son and she couldn't find a work for about 2 years, I shouldn't be in the UK ? also I thought if your sponsor left the UK and you like to continue, you can apply in another category until unless u can prove your relationship, her/his exercising treaty status and can prove she/he wouldn't be back.

my other question with ZAHAMED05 what happen to the people who get divorced with EU nationals or they died ? what will be the status of NON EEA then ?

[Adnanarshad]

My question with (Mr Secret.Simon )

Even otherwise, if she was covered by private health insurance (CSI), she could claim to be a self-sufficient person.

We all have European Health Insurance Card and expires in 2020 if that's what you mean by CSI?

To guide you further, can you provide us with the following information; when did your wife arrive in the UK, when did she start working, when did she start her maternity leave and when did she end the maternity leave?

she came UK in April 2012, started working in May 2012 for 3 weeks then she switched to another company and worked till July 2013 and left, she didn't take anything for maternity from the company bcz they closed the business, also she gave a birth in March 2013, and she registered self employed and started work in May 2015 also she applied for job in 2014 aswell but was getting more hours in a day and she doesn't want to leave baby alone nor even agreed in the child care, during all this time i was on full time employment and didn't apply for any benefits till today...

[zahmed05]

You get retain right provided you was married for three years and eu national was working.

On your first question, you was allowed to enter as they never found out that EU sponsor has stopped working. CSI is not same as European health card

[noajthan]

Thank you all for your useful advices....i know my status depend on my sponsor, as i am depended, and term visa im using again and again becz its allowing me to enter and exit , sorry if im quoting mistakenly but the argument which ZAHAMED05 and OHARA talking about i have some concerns.....like you both are mentioning in your comments that......NON EEA applicant will loose his/her rights if sponsor left UK or Stopped working. so you meant to say when my wife stopped working when she gave a birth to my son and she couldn't find a work for about 2 years, I shouldn't be in the UK ? also I thought if your sponsor left the UK and you like to continue, you can apply in another category until unless u can prove your relationship, her/his exercising treaty status and can prove she/he wouldn't be back.

my other question with ZAHAMED05 what happen to the people who get divorced with EU nationals or they died ? what will be the status of NON EEA then ?

A RC is not a visa and it is optional; it simply confirms the status the holder had on the day of its issue.
It doesn't prove the holder still has the same status years later.
A RC is useful to assist entry back into UK but even EEA family dependents without a RC are able to re-enter country after appropriate investigation.

If sponsor stopped working and was in no other category of qualified person (and did not retain rights eg as a worker whilst on maternity leave) then yes, neither of (or child) would have had a right to remain in the country and to reside or work.
Rock-solid evidence of maternity leave required.

That is why your PR clock has probably only restarted since wife went back to work; two years is too long even for maternity leave and no indication sponsor was a self sufficient qualified person instead.
CSI or alternative would have been required; a UK EHIC is inadequate.

That is why it is pointless divorcing as it makes no difference to your overall timeline which effectively started from then.
And if you plan to stay with (ex)wife you have no valid grounds for divorce; divorce is not like buying a TV license or a fishing permit.

In general, ofcourse people can avail of retained rights of residence due to reasons such as death or incapacity of sponsor, sponsor leaving country, divorce;
all are somewhat extreme options and hardly a lifestyle choice to be made made just for someone's convenience.

[Adnanarshad]

Thanks again for all of you for such a comprehensive reply really appreciate. i wish all of you a Very Happy New Year