Immigrationboards.com

Hello,

Firstly thank you all for the help I have achieved on this forum. Using the expert advice from people here me and my wife have successfully obtained an FP, fought the refusal of a second FP and got it granted and are now proud owners of a 5-year RC.

Our details:
Husband: dual British+Polish (EU) national
Wife: Belarus (Non-EU) - now with RC

My question is as follows:
Normally after 5 years with the the RC EEA2 you can apply for the 'Permanent Residence' EEA4 and then subsequently for Naturalisation to obtain a British passport.

However - as I have a British citizenship, can we not go via the route of 'naturalisation if you are married to or the civil partner of a British citizen' found on UKBA (http://www.ukba.homeoffice.gov.uk/briti ... ofcitizen/)

Requirements that must be met are:

- you are aged 18 or over; and
- you are of sound mind; and
- you can communicate in English, Welsh or Scottish Gaelic to an acceptable degree; and
- you have sufficient knowledge of life in the United Kingdom; and
- you are of good character; and
- you are the husband, wife or civil partner of a British citizen; and
- you meet the residential requirements; or
- your husband, wife or civil partner is in Crown or designated service outside the United Kingdom.

Of these the 'Residential Requirements' are:
In order to demonstrate the residential requirements for naturalisation you need to:

- have been resident in the United Kingdom for at least three years (this is known as the residential qualifying period); and
- have been present in the United Kingdom three years before the date of your application; and
- have not spent more than 270 days outside the United Kingdom during the three-year period; and
- have not spend more than 90 days outside the United Kingdom in the last 12 months of the three-year period; and
- have not been in breach of the immigration rules at any stage during the three-year period

Based on this one can say that that for those Brits who pursued the EEA route for their non-EU partners they actually only need to wait 3 years and not 5 years?

However, although these seem to be criteria they have added a further field called 'Immigration time restrictions' (which funnily enough are not mentioned in the requirements) that state that 'you must be free from immigration time restrictions on the day you make your application'. (WTF?).

Does this mean that because the RC has a validity of 5 years and evidently has a 'time limit' (i.e. expiration date) you cannot apply for this route? It seems to be an overlap with the requirement of 'have not been in breach of the immigration rules at any stage during the three-year period' as you would not be.

Any advise from anyone? Or does anyone have a experience of going down this route?

Kind regards

Once you have obtained residence via the EEA route you cannot switch to immigration rules again. That is to mean your spouse cannot use the 3 years route to naturalisation on the basis of marriage to a British national.

You can apply for naturalisation after a year of achieving PR, not sooner.

Thanks. Someone made me aware of this when we were originally applying for my wife to come to the UK (namely the Settlement Visa).

But it seems that according to what is said by UKBA, the requirements do not specify what 'visa' you have as long as you are not 'been in breach of immigration rules during your stay'. Has anyone questioned this with the UKBA? Or got their official response?

If married to BC, there is no need to wait another year. She can apply after 5 years of residence.

It is true that residential period for a spouse of BC is 3 years. However, the "free from immigration control" effectively means one needs to have ILR (under the UK rules) or PR (under the EEA regulations which is only achieved after 5 years of residence). If the past, there was a loophole to avoid this requirement (basically applying from abroad as you have no immigration control outside the UK) but the HO has closed that several years ago.

If your spouse residency have been issued under the immigration rules, it would have been a settlement visa valid for 2 years on expiry of the 2 years she will qualify for ILR, after a year on that she can be naturalised as a British.

Your wife is in the UK under EEA rules, 5 years residence card, 1 year on PR, and then naturalisation, you cannot switch back to uk immigration rules.

It's more of a case of someone having their cake and eating it.

frei wrote:If your spouse residency have been issued under the immigration rules, it would have been a settlement visa valid for 2 years on expiry of the 2 years she will qualify for ILR, after a year on that she can be naturalised as a British.

Your wife is in the UK under EEA rules, 5 years residence card, 1 year on PR, and then naturalisation, you cannot switch back to uk immigration rules.

It's more of a case of someone having their cake and eating it.

You are confusing between immigrations route and naturalisation.

There is no one year after ILR for spouse of BC. They can apply the day they obtain ILR if they have completed 3 years of residence (on a different visa for example). It just happens to be that ILR was achieved after 2 years and naturalisation period is 3 years. With the new ILR rules, spouse visa is for 5 years but still naturalisation is 3 years. The legislation hasn't changed since 1981.

Thanks for that Jambo. It would be interesting to see what that loophole actually was and how it was closed. You got any links?

If as a spouse of BC you can't use that route, what are the issues considering the RC with the new ammendment to the EEA rules that states the EU-national cannot be a British citizen? I know it's not for 5 years (from now) m, but do the transitional arrangements last that long?

Thanks Jambo.

Szmek wrote:Thanks for that Jambo. It would be interesting to see what that loophole actually was and how it was closed. You got any links?

The loophole was the Ppron Method. The UKBA closed it by amending their instructions.

vinny wrote:

The loophole was the Ppron Method. The UKBA closed it by amending their instructions.

Very educative vinny. thanks

Szmek wrote:If as a spouse of BC you can't use that route, what are the issues considering the RC with the new ammendment to the EEA rules that states the EU-national cannot be a British citizen? I know it's not for 5 years (from now) m, but do the transitional arrangements last that long?

Not sure what the question is.

The transitional arrangements don't have a time limit. It just means that if you have been on the old rules, you can stay on the on old rules. Naturally as time passes, fewer people would benefit from it.

After 5 years under the EEA regulation, a spouse of BC, can apply for British citizenship, there is no requirement to apply for EEA4 (PR Confirmation). The only requirements would be that the EEA national has exercised treaty rights for the 5 years and that the non-EEA national has resided in the UK for 5 years.

very interesting. i am in similar situation. my husband is EU national +british now. i have applied for my PR and still waiting. so, according to the info here, i don't need to wait for another year before applying for naturalisation. so, if i will apply for naturalisation after receiving my PR, will it be as spouse of a british national and which form will i need to use? any help will be appreciated.

OK. That statement makes sense. My query was whether the transitional arrangements would still apply for the PR. They gave different cut-off dates for the FP and for the RC/PR but nothing really about what happens 5 years down the line when the RC is supposed to turn into a PR. Anyhow, thanks for the clarification.

Given this situation though, once the RC expires on what grounds is my wife legally in the UK? Normally this would be a PR, which has to be applied for. If she applies directly for Naturalisation - she technically has no ILR (or PR) (or documented rights to be in the UK)
According to the guidance: You must be free from immigration time restrictions on the day you make your application. This often means having already gained settled status before you make your citizenship application.

renu wrote:very interesting. i am in similar situation. my husband is EU national +british now. i have applied for my PR and still waiting. so, according to the info here, i don't need to wait for another year before applying for naturalisation. so, if i will apply for naturalisation after receiving my PR, will it be as spouse of a british national and which form will i need to use? any help will be appreciated.

Correct. You don't need to wait. There is only one form for naturalisation. Just provide evidence that your husband is British.

In your circumstances, I would have just skipped the PR application and apply directly for BC after 5 years. It is advisable to apply for PR Confirmation to reduce risk (mainly treaty rights evidence) as the application is free. But in your case, your husband already proved that, so there is little risk in your application. You just need to prove you are married and that you lived in the UK for 5 years. The naturalisation application form has a section for such cases (basically a mini EEA3/4 form).

Szmek wrote:OK. That statement makes sense. My query was whether the transitional arrangements would still apply for the PR. They gave different cut-off dates for the FP and for the RC/PR but nothing really about what happens 5 years down the line when the RC is supposed to turn into a PR. Anyhow, thanks for the clarification.

Given this situation though, once the RC expires on what grounds is my wife legally in the UK? Normally this would be a PR, which has to be applied for. If she applies directly for Naturalisation - she technically has no ILR (or PR) (or documented rights to be in the UK)
According to the guidance: You must be free from immigration time restrictions on the day you make your application. This often means having already gained settled status before you make your citizenship application.

Under EEA regulations, there is no need to apply for PR. it is obtained automatically. She doesn't need to wait for the RC to expire.

Once she completes 5 years of residence in which you have exercised your treaty rights as EEA national for 5 years, she can apply for BC. She can apply directly for BC and in that case, she will need your treaty rights evidence (and you EEA passport/ID) and to meet the 3 years residential requirements for spouse of BC (270 days of absence etc) and your British passport. If you are not sure about your treaty rights evidence and would like to reduce risk, she can apply first for PR confirmation using form EEA4 and once this is confirmed apply for BC.

Jambo, in the case people who got residence card via Surrinder, when would they be eligible to apply for naturalization? Would it be after 3 years of living in the UK? even though they have not completed 5 years of residence or it will be after achieving PR as they must be exempted from immigration control?

frei wrote:Jambo, in the case people who got residence card via Surrinder, when would they be eligible to apply for naturalization? Would it be after 3 years of living in the UK? even though they have not completed 5 years of residence or it will be after achieving PR as they must be exempted from immigration control?

5 years. You need PR for naturalisation and this is only achieved after 5 years under the EEA regulations ( standard or Singh).

It will be the same case for people under the UK spouse route post the July 2012 changes. ILR is now only obtained after 5 years, not 2. Once they have obtain ILR they can apply and the qualifying period for the application (with regards to meeting the absence requirements etc) would be the 3 years before the application even though they had to live in the UK for 5 years.

This post is very timely as I was going to start a new one on the same subject.

Szmek - hope you do not object to me tagging along. If so, just say and I will start a post afresh.

I am currently waiting for my PR confirmation following 5 years of residence i the UK with my husband who is Swiss. He has also naturalised as British.

Now, as I understand it from what's being said here, I didn't need to apply for PR confirmation first and could have applied to naturalise on reaching my 5th anniversary providing evidence of my husband's PR status (derived under EU law), British citizenship and proof my residence in the UK for 5 years (passport&P60s) - correct?

As it stands I have chosen to see the PR confirmation process through - if only to make things easier - before applying to naturalise. As I will be applying as the spouse of a British citizen, would I come under the 3 year residential qualifying period OR 5 years? I am unsure whether to count my absences going back 3 years or 5 years.

I ask since the immigration rule change now requiring 5 years residence before foreign partners of British citizens can acquire ILR. Want to be sure I understand how the immigration rules can marry with the EU rules.

Thanks

Plum70 wrote:This post is very timely as I was going to start a new one on the same subject.

Szmek - hope you do not object to me tagging along. If so, just say and I will start a post afresh.

I am currently waiting for my PR confirmation following 5 years of residence i the UK with my husband who is Swiss. He has also naturalised as British.

Now, as I understand it from what's being said here, I didn't need to apply for PR confirmation first and could have applied to naturalise on reaching my 5th anniversary providing evidence of my husband's PR status (derived under EU law), British citizenship and proof my residence in the UK for 5 years (passport&P60s) - correct?

As it stands I have chosen to see the PR confirmation process through - if only to make things easier - before applying to naturalise. As I will be applying as the spouse of a British citizen, would I come under the 3 year residential qualifying period OR 5 years? I am unsure whether to count my absences going back 3 years or 5 years.

I ask since the immigration rule change now requiring 5 years residence before foreign partners of British citizens can acquire ILR. Want to be sure I understand how the immigration rules can marry with the EU rules.

Thanks

Your understanding is correct.

This is a two stage process.

First - prove you have PR. if you have a PR Confrmation vignette, you are done. Nothing else is required. If not, then you will need to provide your husband PR card & Swiss passport and marriage Certficate.

Second - prove you meet the requirements for naturalisation. This includes absences in the last 3 years before the application. The application doesn't require evidence for your presence in the UK other than your passport. You will also need to provide evidence of marriage to a BC so a marriage certificate and a British passport or naturalisation certificate.


So if you have a PR card, what you need to submit is:
- your passport
- your PR confirmation.
- your life in the UK test
- your marriage certificate
- your husband proof of BC (passport or certificate).

When filling the form, only absences in the last 3 years matter.

Plum70 wrote:Now, as I understand it from what's being said here, I didn't need to apply for PR confirmation first and could have applied to naturalise on reaching my 5th anniversary providing evidence of my husband's PR status (derived under EU law), British citizenship and proof my residence in the UK for 5 years (passport&P60s) - correct?

Yes. My wife got her BC this way.

Plum70 wrote:As it stands I have chosen to see the PR confirmation process through - if only to make things easier - before applying to naturalise. As I will be applying as the spouse of a British citizen, would I come under the 3 year residential qualifying period OR 5 years? I am unsure whether to count my absences going back 3 years or 5 years.

We put both counts.
We went throught NCS, the lady called the UKBA to ask if she had to put my wife application under the EU route or the British spouse route, and the UKBA answered the latter.

Jambo wrote: Your understanding is correct.

This is a two stage process.

First - prove you have PR. if you have a PR Confrmation vignette, you are done. Nothing else is required. If not, then you will need to provide your husband PR card & Swiss passport and marriage Certficate.

Second - prove you meet the requirements for naturalisation. This includes absences in the last 3 years before the application. The application doesn't require evidence for your presence in the UK other than your passport. You will also need to provide evidence of marriage to a BC so a marriage certificate and a British passport or naturalisation certificate.

So if you have a PR card, what you need to submit is:
- your passport
- your PR confirmation.
- your life in the UK test
- your marriage certificate
- your husband proof of BC (passport or certificate).

When filling the form, only absences in the last 3 years matter.

Thanks Jambo.

This is why I reasoned that the process might be more 'light-weight' if I waited for my PR confirmation (also saving up for the fees!).

I've seen recommendations to also include P60s to prove my residence in the UK for three years as a passport doesn't necessarily prove this. Also my P60s will back up my employment details in the AN form. This is only a detail but might prove useful.

Thanks again.