***Refused*** EEA Indefinite Leave To Remain

[avijendr]

Hello experts - I'd like someone to give me some advice here as I am totally confused:

My wife is a Romanian citizen. I am naturalised British citizen since 2016 (Indian Citizen before and ILR since 2012). We've been married since 2010 and she's living in the UK since 2009. I came to this country in 2007 and got my ILR in 2012. I was a company director and applied for same day service at Croydon.

My wife never worked in this country as she stayed as a homemaker and my earnings were good enough to support the family. So We applied for my wife's ILR (in January 2018) as we are married for almost 8 years and living together for 9 years . We applied with the following documents:

• Wife's Bank Statements

• Marriage Certificate

• My ILR Approval letter

• Copy of My Biometrics (Which was returned after I got my citizenship)

• My British Passport (and her's as well)

The application got REFUSED and these are the reasons they gave:

Reason one
Unfortunately your sponsor has failed to provide sufficient evidence that they have resided in accordance with the regulations as a qualified person for five continuous years, as a family member you are refused in line with your family member sponsor.

Obviously I haven't supplied my evidence (bank statements/ salary slips etc) because I've already got my ILR 6 years ago and my British Citizenship as well. This seems ridiculous.

Reason two - I'll only point the important bits to save space and time
You state that your sponsor is a British citizen and you have provided a British Passport as evidence of this. Prior to becoming a British citizen you state that your sponsor was an Indian national... Regulation 2 of the Regulations, having been amended in 2012, states that EEA national means a national of an EEA state who is not also a British citizen. (..Regulations after Surinder Singh..)..As your sponsor is a British Citizen then cannot be considered as a EEA national..Unfortunately as your sponsor has failed to reside in accordance with the Regulations as qualified person for five continuous years, as a family member you are refused in line with EEA family member lead.

They have told we can appeal or reapply if we have more evidence.

The questions I have got are:

• Should we appeal? (If we appeal and gets rejected are there any rules which state that we can't reapply)?

• Should I reapply with all the evidence I provided during my ILR (I really don't get it as my ILR & Passport should prove that)?

• If none of the above is a choice - what the best choice? What's going to happen to my wife after UK leaves EU next year?

• Couldn't find any applications which specifically says permanent residence for spouse of British citizens. Is there anything out there like this?

Any help would be highly appreciated! Thanks in advance.

This is the details of my ILR which I got 6 years ago - if it helps:
indefinite-leave-to-remain/ilr-approved ... 09867.html

[secret.simon]

The refusal is correct.

Firstly, as an EEA citizen, your wife does not qualify for ILR, she automatically acquires PR. They are two different and distinct statuses.

Secondly, a British citizen cannot sponsor their family members under the EEA Regulations, except in very limited circumstances (the Surinder Singh route).

Because of that, an EEA citizen cannot be sponsored by a British citizen for PR. S/he must exercise treaty rights in their own right in order to acquire PR.

The EEA citizen can acquire PR by
a) working
b) seeking work (jobseeker)
c) being a student with Comprehensive Sickness Insurance (private health insurance)
d) being self-sufficient with Comprehensive Sickness Insurance (private health insurance)

Your EEA citizen wife was self-sufficient as you were the main bread-winner in the family. But she also needed CSI (private health insurance) in order for it to count as having exercised treaty rights.

Post Brexit, the UK government has announced that it will disregard the CSI requirements for EEA citizens who are already resident in the UK and otherwise self-sufficient. But that will a grant from the UK government, not a requirement of EU law, which does require an EEA citizen like your wife to have private health insurance for her presence in the UK to count as residence.

If she gets a private health insurance policy for herself, she will start exercising treaty rights from that day onwards and will be eligible for PR on the fifth anniversary of that health policy (which she may need to keep paying for for five years).

[avijendr]

Thanks @secret.simon for your reply.

If she gets a private health insurance policy for herself, she will start exercising treaty rights from that day onwards and will be eligible for PR on the fifth anniversary of that health policy (which she may need to keep paying for for five years).

So for her to stay here - (post brexit + 2 years) would she need a visa?

On the side note - Non-EU spouses don't need to have a private health insurance - but the spouse of a British citizen needs private health sounds so absurd.

Thanks again!

[Obie]

ON the same token, the amount that Non-EEA spouse spend to come to the UK is much more than EEA national spends.

Had you wife followed the right procedure, she would have acquired PR by now. What was she doing in the UK before you married?

[secret.simon]

o for her to stay here - (post brexit + 2 years) would she need a visa?

No. So long as she is self-sufficient and has private health insurance, she is good to go. It may be worth her applying for a Residence certificate for her, just in case.

Non-EU spouses don't need to have a private health insurance - but the spouse of a British citizen needs private health sounds so absurd.

Non-EEA spouses of British citizens need to meet much more stringent rules to reside in the UK. To start with, the British citizen spouse must earn more than £18,600 (plus additional funds if non-British children are involved). No such requirements for EEA citizens or their family members.

Secondly, non-EEA spouses are charged £200 (per year or part of year) over and above the very high visa fees (£1000+, as opposed to £65 for an EEA application) as "Immigration Health Surcharge". That is due to double to £400 per year (or part thereof) in April.

Your wife is quite lucky to be able to avail of the much more relaxed (and much cheaper) EU laws on this matter.

[avijendr]

Thanks @secret.simon. Much appreciated!

@Obie - Thanks for the explanation. Re your question, "what she was doing" - She was working! And she stopped working when we had our first kid!

[Obie]

Thanks @secret.simon. Much appreciated!

@Obie - Thanks for the explanation. Re your question, "what she was doing" - She was working! And she stopped working when we had our first kid!

so she was issued a registration certificate as a Romanian citizen, right?

[avijendr]

Yes she was - but she only worked for 2 years.

[Obie]

I guess she did not hold a European Health insurance card right?

[secret.simon]

I guess she did not hold a European Health insurance card right?

More precisely, did she hold a non-UK EHIC card, most likely issued by Romania, for the whole period that she was not working in the UK?

[Obie]

I guess she did not hold a European Health insurance card right?

More precisely, did she hold a non-UK EHIC card, most likely issued by Romania, for the whole period that she was not working in the UK?

Thank you secretsimon for your kindness in elaborating what i mean.

[vinny]

I guess she did not hold a European Health insurance card right?

An EHIC may be insufficient?

[Obie]

I guess she did not hold a European Health insurance card right?

An EHIC may be insufficient?

One must not lose sight of Baumbast. The CJEU took the view that proportionality has to be exercised in these cases. Mr Baumbast appear to hold a German EHIC and the Court was prepared to proceed on the basis that it was disproportionate to refuse him a right of residence.

These UK cases are not only inconsistent with the letter of EU law, they are inconsistent with spirit of it. Just aswell that they are leaving without the indignity of being kicked out.

[vinny]

It was a surprising determination.

[vinny]

Thanks for the Baumbast reference.