Citizenship application - WRS, EEA status and more

Hi,

I'd be grateful for any advice with this one:

1. My wife is a Polish national and has applied for British Citizenship
2. I am a British citizen
3. We got married in 2002 when we were both living and working in Poland. I lived in Poland for about 4 years and one year in Germany around that time.
4. We moved to the U.K. in 2005 (or to clarify I moved back - and this may be important..)
5. We read the guidance on the Workers Registration Scheme back in 2005 and phoned up the helpline (it was much more friendly then and you could actually get through). The guidance said that 'family members of EEA nationals do not need to register'. I thought 'the UK has been a member of the EEA since 1973!, so I concluded that the spouse of a UK national is exempt. When I called them up I explained our situation and they seemed to agree she didn't need to register so we left it at that.
6. Both my wife and I have worked continuously in the UK from 2005-2016 with no gaps. We have two kids too. And we go back to Poland of course for occasional holidays.
7. So we received a letter yesterday from the home office UKVI people addressed to my wife asking for 'Evidence that you completed at least 12 months employment whilst registered with the Worker Registration Scheme (WRS).' Imagine what went through my head - it wasn't pretty!

So, after some searching on the internet I've established that the case is not quite as clear cut as you might first think. It seems that:

8. The UK was not considered an EEA country for the purposes of the WRS legislation (statutory instrument 2004). So probably the guidance on the government website at the time was not clear enough - there was no mention in May 2005 that for the WRS the UK is not considered an EEA country - and other government pages clearly state the truth - i.e. that the UK is EEA (i.e. https://www.gov.uk/eu-eea ). OK - treaty rights do not seem to apply to citizens in their own countries etc.

9. However, the 2006 Immigration EEA regulations statutory instrument states the following under regulation 9

'(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the family member of a United Kingdom national as if the United Kingdom national were an
EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed
person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the
parties are living together in the EEA State or had entered into the marriage or civil
partnership and were living together in that State before the United Kingdom national
returned to the United Kingdom.'

This would seem to suggest that in some cases UK national can be considered as an EEA national for purposes of exercises treaty rights (as you can probably guess I'm not a lawyer so may be completely wrong). However if this was the case then we might be able to reasonably suggest that actually my wife and I were correct in concluding that she didn't need to register on the WRS.

Overall we have two possible lines of argument to level at the home office. both are valid I think, but I have no idea if anyone has tried them before or if they have any chance of success.

- she didn't need to register because she should be considered a family member of a british citizen who should be considered as an EEA national under the 2006 legislation (and perhaps also the previous 2000 legislation??)

-The guidance itself was unclear and open to misinterpretation as it was not specified at the time as Uk nationals were not to be considered EEA nationals.

Finally I should mention that I did run through the original WRS query again 6 months ago with the people on the advice line and they again seemed to agree with my interpretation (after 2 minutes checking) , but I am not at all confident in them.

If anyone has any suggestions or has been through a similar experience please let me know. It is a matter of some importance for us as £1050 is at stake.

Thanks

Alexander T.

Alexander10 wrote:Hi,

I'd be grateful for any advice with this one:

...

7. So we received a letter yesterday from the home office UKVI people addressed to my wife asking for 'Evidence that you completed at least 12 months employment whilst registered with the Worker Registration Scheme (WRS).' Imagine what went through my head - it wasn't pretty!

So, after some searching on the internet I've established that the case is not quite as clear cut as you might first think. It seems that:

8. The UK was not considered an EEA country for the purposes of the WRS legislation (statutory instrument 2004). So probably the guidance on the government website at the time was not clear enough - there was no mention in May 2005 that for the WRS the UK is not considered an EEA country - and other government pages clearly state the truth - i.e. that the UK is EEA (i.e. https://www.gov.uk/eu-eea ). OK - treaty rights do not seem to apply to citizens in their own countries etc.

9. However, the 2006 Immigration EEA regulations statutory instrument states the following under regulation 9

...

This would seem to suggest that in some cases UK national can be considered as an EEA national for purposes of exercises treaty rights (as you can probably guess I'm not a lawyer so may be completely wrong). However if this was the case then we might be able to reasonably suggest that actually my wife and I were correct in concluding that she didn't need to register on the WRS.

Overall we have two possible lines of argument to level at the home office. both are valid I think, but I have no idea if anyone has tried them before or if they have any chance of success.

- she didn't need to register because she should be considered a family member of a british citizen who should be considered as an EEA national under the 2006 legislation (and perhaps also the previous 2000 legislation??)

-The guidance itself was unclear and open to misinterpretation as it was not specified at the time as Uk nationals were not to be considered EEA nationals.

Finally I should mention that I did run through the original WRS query again 6 months ago with the people on the advice line and they again seemed to agree with my interpretation (after 2 minutes checking) , but I am not at all confident in them.

If anyone has any suggestions or has been through a similar experience please let me know. It is a matter of some importance for us as £1050 is at stake.

Thanks

Alexander T.

On my cellphone so some of this is from memory as not easy to crosscheck.

Interesting question - not seen often, if at all, in the forum but here goes...
1) There is an exemption from WRS if the worker was working in UK pre-2004 (= I think). Sadly you just miss that date.

2) Before McCarthy case of 2012, C434/09, BCs were considered EEA nationals.(Especially if they were a dual, British & EEA national).
You could dig into that further.
My understanding is the spouse/dependent would still have needed to hold a RC. Did your wife have UK-issued RC in those days?

I don't know if this scenario can be applied to WRS in the time-frame in question.

3) Also interesting you lived/worked in Poland - was Poland in EU at the time?

If so congratulations on (possibly) taking the Surinder Singh route which means on returning to UK you are treated as an EEA national even post=McCarthy and the consequent changes to 2006 Immigration Regulations (as amended, 2012).

Due to case law of Eind you have no need to exercise treaty rights in UK on your return to UK;
consequently all your dependent has to do is remain married (to you) & reside in UK for 5 years. (Strictly speaking, under EU law, there is no need for co-habitation although I imagine you did/do live together).

In these circumstances wife's economic activity in UK is immaterial therefore no need to worry about WRS.

4) Last scenario, if wife is operating in her own right as an EEA national then, WRS was terminated in 2011. Therefore your wife could have acquired PR by working throughout the period 2011 -2016. Which is round about now.

Certainly these days treat advice from HO helpline with caution.
It can be notoriously unreliable & the advisors cannot be held accountable for their advice.

Hope this helps or at least suggest further areas to dig into.

For my money, suggestions #3 & #4 may be your best bets.

Thanks for that detailed response. I think you are right about the possible application of 3 (i.e. the use of the surinder singh case) but I'm still not sure. My wife has never had a residence card and there's no dual nationality, so that might have an impact on 2.

In terms of the 'treatment like an EEA national' argument:

1. I lived in Poland 1999-2000; 2001-2005 (in Germany for short period 2000-2001). My wife was in Poland whole time.
2. We got married in 2002
3. Poland joined EU May 2004; effectively became part of EEA.
4. So between 2004 and 2005 we were living in Poland (part of EU) and married (although when we married Poland was not part of the EU)
5. In 2004-5 we started looking for jobs in the UK aware of the fact that it was now possible for both of us (rather than just me) to secure work there.
6. We moved finally to UK in 2005 and started work. As noted before we checked on WRS and deduced it was not necessary.

Of course I don't know the legal details here, but according to regulation 9 of the 2006 act (which as I understand it was the bringing into effect of an EU directive of 2004?) we may have a case that I should be treated as an EEA national returning to the UK (and therefore wife as family member)

If not I'm guessing we're sunk as the application was submitted in October 2015, so she would only have 4 and a half years since the April 2011 end of the WRS.

The most annoying thing is that I went through this with the advice line before we submitted the application and they agreed that she didn't need to have done WRS. I hadn't read about the legislation then so I didn't know what I was arguing for really - they probably just wanted to get me off the phone!

Thanks for your help

Alexander10 wrote:Thanks for that detailed response. I think you are right about the possible application of 3 (i.e. the use of the surinder singh case) but I'm still not sure. My wife has never had a residence card and there's no dual nationality, so that might have an impact on 2.

In terms of the 'treatment like an EEA national' argument:

1. I lived in Poland 1999-2000; 2001-2005 (in Germany for short period 2000-2001). My wife was in Poland whole time.
2. We got married in 2002
3. Poland joined EU May 2004; effectively became part of EEA.
4. So between 2004 and 2005 we were living in Poland (part of EU) and married (although when we married Poland was not part of the EU)
5. In 2004-5 we started looking for jobs in the UK aware of the fact that it was now possible for both of us (rather than just me) to secure work there.
6. We moved finally to UK in 2005 and started work. As noted before we checked on WRS and deduced it was not necessary.

Of course I don't know the legal details here, but according to regulation 9 of the 2006 act (which as I understand it was the bringing into effect of an EU directive of 2004?) we may have a case that I should be treated as an EEA national returning to the UK (and therefore wife as family member)

...

Thanks for your help

Don't know about earlier days but now helpline cannot be relied upon.
Ref: https://www.freemovement.org.uk/immigra ... pectation/

You are right, timing is not quite there for a post-WRS argument; (mid-2011- mid-2016).

I think you can make a case that you have done Surinder Singh.
You are now a (proxy) EEA national.
Thus your spouse is your dependent direct family member and you can sponsor her.
Therefore she doesn't need to have exercised treaty rights in UK (nor had WRS / CSI etc).
Nor even a RC as the RC is an optional confirmatory document.

As a returning SurinderSingh-er, & based on case law of Eind, you have no need to have exercised treaty rights in UK.
So in effect your good lady wife just needs proof of her id, your id, your relationship & proof of her residence in UK for at least 5 years.

You will have to show how you exercised treaty rights in Poland from at least 2004.
Any evidence of treaty rights before Poland's accession is still admissible & can only bolster your case (if you have any such evidence from then). There is case law to support this.

The challenge you now have is how to package this to HO as an amendment to your AN application.

Suggest print off the PR form, just relevant sections.
It is a monster form - you can even reference an earlier (simpler) version if you wish.
(see Gov UK archive website, links in other posts in this forum).

You could go ahead & start with a letter.
However, using a PR form will probably help structure the evidence to start with.

Have a go at collating your evidence & filling in the form - see how it stacks up & what gaps there may be.

As you have a complex case, you should then develop a cogent explanatory cover letter to further make your case.
You could submit parts of the PR form as a sort of appendix in your bundle to help structure your evidence.

Keep scans/copies of all evidence, letters & forms you submit - for your reference in any follow ups.

PS Here's some case law for reference:
https://www.gov.uk/government/uploads/s ... w_v2_0.pdf
See Eind in particular, (McCarthy is also mentioned)

Best of British luck.

Thanks very much for all the advice. I'll look into that case law document in more detail. My work and residence in Poland can be evidenced reasonably well I think - I had to do all the immigration documents back then - including the trips over the border to Germany to renew things, and the long queues for stamps and decisions... so quite a lot of paperwork is around somewhere.

However, despite possibly having a good case I'm still not that confident of success. Sadly the British government and its administration seems to be going backwards - guidance is not clear, decisions less fair and everything costs more. I'm sure I'm not alone in thinking that.

I'll let you know how we get on.

Alexander10 wrote:Thanks very much for all the advice. I'll look into that case law document in more detail. My work and residence in Poland can be evidenced reasonably well I think - I had to do all the immigration documents back then - including the trips over the border to Germany to renew things, and the long queues for stamps and decisions... so quite a lot of paperwork is around somewhere.

However, despite possibly having a good case I'm still not that confident of success. Sadly the British government and its administration seems to be going backwards - guidance is not clear, decisions less fair and everything costs more. I'm sure I'm not alone in thinking that.

I'll let you know how we get on.

You have no appeal rights here.
Naturalisation can only go to reconsideration (usually on grounds of any procedural errors by HO).

You are fortunate caseworker has extended you a lifeline by writing with the queries.

If playing the Surinder Singh card you now need to switch the thrust of application from spouse (& her treaty rights) over to your status as EEA.

Clear evidence of shifting your centre of life to Poland will surely help;
(even though the UK's somewhat controversial c-o-l test wasn't even rolled out as a wrapper round the purer EU requirements when you were in Poland)

Quote all the case law too - especially Eind.
Ref: https://blogs.kent.ac.uk/eu-rights-clin ... g-the-law/

fyi more on SS:
https://www.freemovement.org.uk/surinde ... ion-route/

Give it your best shot.