secret.simon was correct; You people are so good lol
Just on the safe side, I logged a request for advice with Your Europe Advice and they replied as follows:
Dear Sir,
Thank you for getting in touch with Your Europe Advice.
Your query relates to your partner who is a Portugal citizen; currently living in the UK. She is exercising her rights of residence in the UK as a self-sufficient person, on the basis that she has sufficient funds to live in the UK without recourse to public assistance. You have also taken out in her name a private comprehensive sickness insurance policy.
You wonder whether she may qualify for the right of residence in the UK.
If an EU citizen must rely on a period of residence in the UK as a self sufficient person, he/she is required to prove that he/she meet the requirements for comprehensive sickness insurance (under article 7 Directive 2004/38), (as well as proving that she/he has sufficient funds to maintain herself without recourse to public assistance).
Given that your partner is currently able to prove that she holds private sickness insurance, she is eligible for the issue of a Certificate of Registration, as confirmation of the right of residence under article 7 Directive 2004/38. The Home Office cannot refuse an application for the issue of a registration certificate simply because your partner did not have comprehensive sickness insurance at the outset of her residence in the UK. And further note that the registration certificate when issued confirms the existence of your partner's right of residence in the UK under article 7 Directive 2004/38, at the time she submits her application. In other words, the issue of the registration certificate has no retrospective effect.
Note that the requirement for private sickness insurance has been upheld by the Court of Appeal in the UK in the case of Ahmad [2014] EWCA Civ 988.
Accordingly, the UK argues that where an EU citizen is not economically active, relying on the NHS is akin to relying on public assistance; thus, the inactive EU citizen must prove he is not a burden on the public purse by providing for his own private sickness insurance. The Home Office may find potential support in this argument in the recent case of Alimanovic Case 67/14. More recently, the UK has successfully defended itself before the Court of Justice in case C 308/14 handed down on the 14th June 2016.
Thus, whilst the European Commission started a process to bring the UK before the Court of Justice of the European Union, on the grounds of what it considered to be the UK breaching EU law, the Court of Justice has held that the UK is acting within the bounds of EU law. The case initiated against the UK, on the grounds that the requirements for comprehensive sickness insurance was unlawful, may therefore be withdrawn or dropped by the European Commission.
Your other query relates to when your partner may start the calculation of her 5 year period of residence for the purposes of obtaining the right of permanent residence in the UK.
Under Article 16 Directive 2004/38, your partner will be required to prove a continuous period of residence in accordance with article 7 Directive 2004/38.
You describe the following:
Your partner came to London in January 2015 from Lisbon to settle down; she is a Portuguese citizen. From January 2016, she worked for 4 months; stopped working for three months; She then worked again for 2 months. Then stopped working for another 3 months. She then left the UK on 23 October 2016 and came back to the UK on the 24 February 2017 (accordingly, an absence from the UK of approximately 4 months).
Note that your partner may be eligible for the right of residence as a worker, from January 2015 on the basis that she worked for 5 months intermittently. There were absences or breaks in the continuity of her work, for reasons that are not given.
However, if your partner is able to argue that she falls under the application of Article 7 paragraph 3, thereby retaining the status of worker when she was not working, she could claim a continuous period of residence in the UK, as a worker under Article 7 paragraph 1, and then retaining the right of worker under Article 7 paragraph 3, from January 2016 to October 2016. Given the lack of detail in your post, it is not possible to assess what her situation may be.
Furthermore, your partner could claim that her continuity of residence in the UK was not broken through her absence from the UK between October 2016 through to February 2017, on the grounds of Article 16 paragraph 3 Directive 2004/38; this provision allows for absences of up to 6 months from the UK without it affecting the continuity of the residence in the UK.
Why is all this important to highlight? Simply because as a worker, your partner is not required to hold comprehensive sickness insurance, (by virtue of Article 7 Directive 2004/38).
Accordingly, if your partner is able to prove that she was a worker and then retained her status as a worker from January 2015 through to February 2017, she may be eligible for the right of permanent residence as early as January 2020, assuming that her residence between February 2017 and January 2020 is in accordance with the terms of Article 7 Directive 2004/38; ie. as a worker, self-employed person or self sufficient person.
If your partner is not able to qualify for the right of permanent residence because she cannot meet the conditions described above, she may have to wait until she is able to prove the conditions required under Directive 2004/38; that is to say, that she has been a worker, a self-employed person or a self sufficient person, in accordance with the provisions under article 7 Directive 2004/38, for a continuous period of 5 years.
Where your partner is a worker, self employed person or self sufficient person for the required continuous period of 5 years, your partner will become eligible for the right of permanent residence. Given that Brexit is likely to occur within this time frame, and the uncertainty surrounding the terms under which the UK will withdraw from the EU, we are not able to predict what your partner's status will be in 2020.
In order to obtain further assistance, we suggest you contact a free legal service from one of the groups below.
1. Your local university may operate a law clinic where you can get free legal advice. Many clinics are listed on the website of LawWorks at the bottom of the page:
http://www.lawworks.org.uk/list-of-laww ... er-clinics
2. Depending on where you live, you may also visit your local law centre.
http://www.lawcentres.org.uk/
3. The Immigration Law Practitioners Association is an association of immigration specialists, many of which are solicitors but some of their member organisations include Law Centres that provide free advice. Their members are listed here:
http://www.ilpa.org.uk/directory/webdirect.html
4. You can also seek the advice of a solicitor specialised in immigration matters. You can search for solicitors on the Law Society s website – enter your postcode and select immigration law from the Area of Law drop-down menu:
http://www.lawsociety.org.uk/choosingan ... icitor.law
We hope this answers your query.
We remain at your disposal, should you require further information.
Yours truly,
Your Europe Advice.
