EEA Nationals – further questions answered (January 2017)

By MediVisas on January 26, 2017 in Uncategorized
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Yesterday, it was confirmed the government will have to consult Parliament on their plans to leave the EU, and there will be a Parliamentary vote on this. It is unlikely this will make a huge difference to EEA nationals living in the UK, who still do not have their future status confirmed.

We still advise EEA nationals in the UK to apply for documents to certify their permanent residence if at all possible. If not possible, we advise them to apply for residence cards. For some, after getting PR, it it possible to naturalise.

Once again these are some questions which I have seen crop up in forums regularly, with answers which I hope will help. Please note – all applications are different, and if in doubt please seek legal advice. Please email info@medivisas.com with your specific enquiries.

1) I am a retired person who isn’t working, can I apply for permanent residency?

There are four possible ways you might still qualify.

  1. if you were working in the UK for a period of 12 months before retiring and have lived in the UK for a further four years
  2. if you have lived in the UK for a five year period and have had comprehensive health insurance or an EHIC issued by your home country which covered you for the duration
  3. if you have been in the UK living with your EEA national family and they have been working or have been self employed for five years

If none of these criteria apply to you then do make an application for a residence if possible. Although we think it is unlikely elderly parents of EEA nationals will be removed it is best to formalise residency just in case

2) I am now an adult but I have lived in the UK since I was a child. How can I qualify for PR?

EEA nationals who are exercising treaty rights can ‘sponsor’ their family members who are not. So as with elderly relatives, if you were living with your EEA national parents when you were child, and one or both of them were working, then you will be able to apply for PP on that basis. Instead of sending off evidence that you were exercising treaty rights for five years, you send of evidence that they were exercising treaty rights and that you were in the UK as their dependent.

According to the EEA Regulations, a child family member is automatically a dependent if they are under 21, and can be considered a family member if they are over 21 and living with the family member or financially dependent on them. If you can prove that you obtained PR when a child, you will be issued with your PR documents even if you are well over the age of 21 at the time of application.

3) I am married to a British person. Can they sponsor my application as an EEA national can?

The answer this is almost certainly ‘no’. UK nationals are covered by UK law when they are in the UK, and a UK national is not exercising a right to free movement when in their own country, so an application made with a UK national sponsor could only be made under the UK immigration rules.

The exception to this is when the UK national has been living in another EEA country and working, and therefore exercising his treaty rights elsewhere. Under what is known as the ‘Surinder Singh’ provision, he may be able to then sponsor his family in the UK under the EEA Regulations.

This is something which is often done with UK nationals married to non-EEA nationals, and it should also be possible for UK nationals married to EEA nationals. However, it is very complicated and we advise getting legal assistance with this from someone who is at least a level 2 OISC immigration advisor. If you think this might apply to you, please email us on info@medivisas.com

4) I am a carer to a child or an elderly parent. Can I apply for PR or residency?

There is no easy way to answer this. If you are married to or in a relationship with a UK national and have a UK national child or parent for whom you care for full time then it is almost certainly the case that you would be treated as someone who is not exercising treaty rights. Although under UK immigration laws the ‘carers allowance’ is considered to be effectively a salary, this is not the case under the EEA Regulations. So in order to apply for a residence card you may have to get health insurance.

If you are a single parent to a British child then there may be an application that can be made under the UK immigration rules, but this is something that should be discussed with an advisor who is at least OISC level 2.

5) I am a disabled person. Can I apply for PR or residency?

The EEA Regulations do not make special provision for people who have been disabled since they came to the UK, and people in this situation who have never worked will only be able to get a residence card if they have health insurance, which may well be very difficult.

However, if you have worked in the UK for two years before having to stop due to incapacity, or if your disability or illness is a result of a work place accident or occupational disease, then you could be considered as a worker for the duration and would be able to apply for PR. You will of course need medical evidence, and it is a good idea to have some legal assistance.

Unfortunately, there doesn’t seem to be any provision for people who were students and had to stop due to disability.

6) I am a worker but I am on a zero hours contract. How does this affect me?

As we advise all EEA national workers to submit bank statements, payslips and employer letters to show genuine employment, being on a zero hours contract in itself is not a problem. What could be a problem is if an employee has very low earnings or if the earnings wildly fluctuate from week to week or month to month.

If this is the case then the application needs to have an explanation of the situation, and some help with this might be a good idea.

7) I have periods of maternity leave within the five year period. Can this count as exercising treaty rights?

The only question that matters really is whether or not you were employed during this time. If you remained employed, had maternity pay, and still got payslips, then you remained as a worker. If you were self employed and remained self employed for that year you may be accepted as continuing in self employment but may have to provide further evidence if your earnings for that year were exceptionally low.

If you ceased employment and were not a jobseeker during your maternity leave and had no health insurance then this may unfortunately constitute a breach in your continuous exercising of treaty rights.

8) I was supposed to be on the Worker Registration Scheme but wasn’t. Will this affect my PR application?

Until it was abolished in April 2011, workers from A8 countries who were employed had to sign up to the WRS. This means that they needed a new registration certificate for each job they were in until they had been in the same job for a 12 month period, at which point they no longer had to register, even if they subsequently got a new job. Certain categories, such as the self employed, were exempt.

If you came to the UK as an A8 worker and failed to comply with these rules then your time spent in the UK up to the abolition of the WRS is going to be considered as unlawful and you cannot use this time towards your five years of exercising treaty rights. Further to this, when you want to apply for citizenship, you need to wait for 10 years past the last date on which you were working unlawfully.

So if you came to the UK in 2009, and didn’t get on the WRS until 2010, then you can’t apply to naturalise until 2020, even if you got your PR in 2015.

For any more information on these topics, or to arrange a consultation, please email info@medivisas.com or connect on twitter or Facebook.

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