British citizenship

[peppy]

hi,

could anyone please help on this matter.

A friend has been married to a Brit citizen for the last 3 yrs. She is Latvian. At the time of their marriage Latvia wasn't a part of EU so she went on to get a marriage visa which she had for 2 yrs. After that she didn't apply for any other visa as Latvia joined the EU which meant that
she didn't need one anymore. After being married for 3 yrs she applied for Brit citizenship but got a refusal. The HO told her that she would need to be in the country for 5 yrs before she can apply. The question is, what did she do wrong and why can't she apply for brit citizenship on the basis of being married to Brit citizen, is the 3 yrs rule not applicable in this case?

thanks for any advise.

[ppron747]

What a mess...

The problem is that, in order to qualify for naturalisation as a British citizen, the spouse must

• (a) live in UK for three years and
  (b) be free of time limits on their stay on the day of application.

(There are other requirements, but they needn't trouble us for this particular question.)

From what you say, your friend met requirement (a), but she didn't meet requirement (b). This is because EU nationals are not deemed to have "no time limit" until they have lived in UK for five years.

What she needed to do was to ignore Latvia's accession to the EU, and apply for indefinite leave to remain (ILR) just before the expiry of her "spouse" visa.

What to do about it? I suspect it is now too late to resuscitate the expired spouse visa, but I'll let someone better at the Immigration Rules comment on that.

I'm also not yet fully familiar with the provisions of the new regulations that came into force this year on permanent residence for EU nationals. I know that EU nationals are now automatically regarded as being permanent residents (ie free of time limits) after they have lived in UK for five years, but I don't know how this affects people from (eg) Latvia, who only became EU nationals a couple of years ago. So I don't know if the countdown to your friend's permanent residence started on the day she arrived in UK, or the day she became an EU national. But there are others here who have been analysing the Regulations and memorising every dot and comma, so I am confident that someone will leap in any minute and fill in this particular gap.

So it appears to me that the Home Office are expecting your friend to wait until either the fifth anniversary of her arrival, or the fifth anniversary of Latvia's accession on 4 May 2004, before she can meet requirement (b), above.

There may be a way around this, but I'd like to give others the chance to fill in the gaps in my knowledge on whether there's a possibility of reviving the original spouse visa, and also the "relevant date" for the countdown for permanent residence ofr EU nationals.

Could you, please, also let us know your friend's date of arrival, and the date the visa expired, peppy?

[peppy]

thanks for your promt reply ppron747

to start with i would like to apologise for posting the same message twice. I experienced a problem with my computer and it didn't show up if the message has been posted therefore i posted one more. I do apologise for it and i won't do it again.

going back to the topic...

Could you, please, also let us know your friend's date of arrival, and the date the visa expired, peppy?

unfortunately i have not got the exact date she arrived in the UK. I definitely know that her visa ran out in Jan 2006 and since then she had not applied for any other visa. I will try to get more details tomorrow.

thanks

[ppron747]

Don't worry about the duplicate - I'll delete it now...

Hopefully someone will fill in the blanks in my other post shortly...

cheers

[JAJ]

What she needed to do was to ignore Latvia's accession to the EU, and apply for indefinite leave to remain (ILR) just before the expiry of her "spouse" visa.

What to do about it? I suspect it is now too late to resuscitate the expired spouse visa, but I'll let someone better at the Immigration Rules comment on that.

It might be possible to apply to the Home Office for Indefinite Leave to Remain on "out of policy" grounds. This is clearly a situation not anticipated by the Immigration Rules.

The original poster's Member of Parliament may be able to assist.

[peppy]

What a mess...
Could you, please, also let us know your friend's date of arrival, and the date the visa expired, peppy?

hi again, I’m a bit late with my answers Paul, but here they are..

to start with, my friend had a fiancée visa which she had from 4th July 2003 she arrived in the UK on the 13th of July.
On the 28 of Aug 2003 she got married, after that she applied for marriage visa which was valid for 2 yrs. till 06/01/2006..and you already know what happened next.

by the way, my friend went to an Immigr. lawyer and her lawyer advised her to apply using form EEA 1. She was a newly qualified lawyer and wasnt sure herself from which date her permanent residence will count and she is waiting for a reply from HO to answer this question. Her lawyer also advised not to apply as JAJ recommended "out of policy" as her case is pretty common...

Has anyone else got any other thoughts on this matter and do you think the form EEA1 is the best option for my friend?

Thanks for any thoughts

peppy

[JAJ]

by the way, my friend went to an Immigr. lawyer and her lawyer advised her to apply using form EEA 1. She was a newly qualified lawyer and wasnt sure herself from which date her permanent residence will count and she is waiting for a reply from HO to answer this question. Her lawyer also advised not to apply as JAJ recommended "out of policy" as her case is pretty common...

Has anyone else got any other thoughts on this matter and do you think the form EEA1 is the best option for my friend?

Why did she get advice from a "newly qualified" lawyer rather than an experienced one? Is the lawyer accredited by the Law Society as an immigration law specialist?

[Marco 72]

Immigration is a very complicated issue. Without disrespect, I probably know more about EEA immigration to Britain than some immigration lawyers. When I was looking for someone to assist me with my EEA2/EEA3 application I was suprised to see that many of the solicitors I contacted didn't think I qualified for ILR, even though I had lived and worked in the UK for several years. They thought the only way for an EU citizen to qualify for ILR was to spend 4 years on a residence permit. This in spite of the fact that form EEA3 clearly stated the opposite. In the end I went to a very experienced immigration lawyer who had previously worked for the HO IND for many years. He cost us much more than a less experienced colleague would have charged, but I think it was worth it.

[peppy]

Why did she get advice from a "newly qualified" lawyer rather than an experienced one? Is the lawyer accredited by the Law Society as an immigration law specialist?

JAJ, i guess she had to go to this lawyer 'cos the advice she gives is free of charge and my friend, at this moment of time, can not afford to pay for someone.

[JAJ]

JAJ, i guess she had to go to this lawyer 'cos the advice she gives is free of charge and my friend, at this moment of time, can not afford to pay for someone.

I will just make the observation that often in life, you get what you pay for.

[John]

They thought the only way for an EU citizen to qualify for ILR was to spend 4 years on a residence permit. This in spite of the fact that form EEA3 clearly stated the opposite.

Given that you refer to "4 years" rather than the 5 years now in the legislation, can I ask for confirmation that you applied on form EEA3 prior to that change to the legislation in April 2006. Accordingly if that is the case then you obviously applied before the new EU/EEA regulations came into force on 30.04.06.

And a final question, if I may, would I be correct in thinking that you are an A8 national?

Just trying to work out what might have been the "problem" area here.

[Marco 72]

I will just make the observation that often in life, you get what you pay for.

I like the saying "if you pay peanuts, you get monkeys".

[ppron747]

Peppy

After looking around here, and a couple of other forums, it seems to me that your friend really has three options:

• ("The EU route") - Do nothing at the moment. As the Home Office are interpreting the new EU regulations at the moment, she will then automatically become a Permanent Resident on 4 May 2009, the fifth anniversary of Latvia's accession to the EU, which will mean that (assuming she is still married to a BC) she will immediately qualify to apply for naturalisation
• ("The Immigration Rules route") - She could apply now for further leave to remain (on FLR(M)) as the spouse of a British citizen. Then, after two years, apply for ILR (on SET(M)) which would mean that she would qualify to apply for naturalisation as soon as the ILR application is granted - probably the end of 2008. But this would mean paying two lots of fees, and would only bring her date of qualifying for naturalisation by a few months.
• (The 'Outside the Rules' Route") - She could write to the Home Office explaining that she had mistakenly thought that Latvia's accession meant that she no longer needed to apply for ILR, and asking whether they could consider granting ILR outside the provisions of the Immigration Rules, given that she is still happily married, committed to the UK and wishes to apply for naturalisation. Frankly, I doubt that this would work, but it might be worth a try - it at least doesn't cost anything to write a letter...

I think that summarises the available options. Sorry I can't come up with anything more positive...

[Marco 72]

Given that you refer to "4 years" rather than the 5 years now in the legislation, can I ask for confirmation that you applied on form EEA3 prior to that change to the legislation in April 2006. Accordingly if that is the case then you obviously applied before the new EU/EEA regulations came into force on 30.04.06.

And a final question, if I may, would I be correct in thinking that you are an A8 national?

Yes, sorry, I should have specified. I contacted these solicitors during the first few months of 2005, and finally applied last year in the summer. By the time the new regulations were announced I already had ILR. I am an Italian citizen. I think part of the confusion was due to the fact that immigration solicitors probably don't often deal with EEA nationals wanting to apply for ILR (or citizenship, for that matter).

I hadn't been employed throughout the previous 4 years, but when I wasn't working I always relied on my own funds.

[aga]

Hello
Sorry to get into the subject but my case is pretty similar...
My name is Aga and I would like to clarify my doubts/confusion about the naturalisation and ILR. I am Polish citizen, married to British citizen for almost 2 years. We have been together for 4 years and a bit. I have arrived in the Uk in August 2004 and since then was living here with minor breaks (2 months was the longest but that was the only one such longs, others were just holidays or weekend visits). I was sure that being now the EU citizen I could apply for the naturalisation after 3 years of staying here (as married to the British). But I called the IND and seems that I need to wait 5 years (as all Poles) when I can obtain British citizenship as long as I exercise the Treaty (eg. work, studies etc). I guess that's ok, I am self-employed and financially not dependent on the state. But, it is contradictory with the statement that a spouse can obtain the citizenship after 3 years. For my remark on that, the answer came that to take advantage of it, I should obtain ILR but I can only do it if I have a visa. I dont have a visa as I did not need it being the EU citizen. The advice was to come back to Poland and get the visa to enter the country this way. This is a)ridiculos b)discrimination and also I dont want to start unnecessary procedure eating time and money. Is that really the case that I need ILR? If so, cant I just apply for it , without any Visa (spouse Visa)?
Another question relate to my daughter - she is from the previous marriage, posses Polish citizenship and was born in Poland. She lives with me and my husband, although he has not adopted her, and ahs come to the UK the same time as myself.
Thanks in advance for any advice
best regards, aga

[Marco 72]

Hi aga, in order to obtain ILR you can either spend five years in the UK exercising treaty rights or spend two years on a spouse visa.

But I called the IND and seems that I need to wait 5 years (as all Poles) when I can obtain British citizenship as long as I exercise the Treaty (eg. work, studies etc). I guess that's ok, I am self-employed and financially not dependent on the state. But, it is contradictory with the statement that a spouse can obtain the citizenship after 3 years.

That statement is incorrect, or at least incomplete. In order to qualify for citizenship as the spouse of a British citizen you also need to have ILR by the time of your application. Unlike ordinary applicants, you won't need to have spent one year on ILR. All you need is to have ILR by the time you apply. This effectively reduces the time required for naturalisation by an extra year.

The advice was to come back to Poland and get the visa to enter the country this way. This is a)ridiculos b)discrimination and also I dont want to start unnecessary procedure eating time and money. Is that really the case that I need ILR?

ILR is necessary if you want to apply for British citizenship via naturalisation on the basis of residence in the UK. As far as I know there are no exceptions to this rule. By the way, no one is forcing you to do this: as an EU citizen you can live, study and work in the UK without any problems. If you really want to become a British citizen as soon as possible, the best way is probably for you to apply for a spouse visa. I'm not sure if you really need to go back to Poland for that. I thought it was possible to do it in the UK, but I don't have any experience with that.

Another question relate to my daughter - she is from the previous marriage, posses Polish citizenship and was born in Poland. She lives with me and my husband, although he has not adopted her, and ahs come to the UK the same time as myself.

Er, what is the question? When you apply for citizenship you can include your daughter on your application, as long as she is under 18.

[aga]

Hi Marco
thanks for your reply. This visa hassle seems to be ridiculous. I want to make the procedure faster than 5 years if possible. I understand now that I should have IRL to apply for BC but is it really no any other route than applying for visa? seems strange since I have been here almost 3 years

[aga]

]Another question relate to my daughter - she is from the previous marriage, posses Polish citizenship and was born in Poland. She lives with me and my husband, although he has not adopted her, and ahs come to the UK the same time as myself.

Er, what is the question? When you apply for citizenship you can include your daughter on your application, as long as she is under 18.[/quote]

Sorry somehow did not finished the thought:)) But you got it correctly. Thank you for the answer, at least this seems to be straightforward.

[Marco 72]

Hi Marco
thanks for your reply. This visa hassle seems to be ridiculous. I want to make the procedure faster than 5 years if possible. I understand now that I should have IRL to apply for BC but is it really no any other route than applying for visa? seems strange since I have been here almost 3 years

If you apply for a spouse visa now, it will probably be granted in a few weeks or months, say during the first half of 2007. Two years later you can apply for ILR. As soon as you get it you can apply for naturalisation. So you may be only 2-3 years away from UK citizenship. If you do nothing now, you will be able to apply for ILR anyway in August 2009 (provided you have exercised Treaty rights in the previous 5 years). If you want to increase your chances of getting ILR, it might be worthwile applying for a spouse visa. A few bits of advice:

- Keep copies of all bank statements, P60's, payslips, etc. They are not all strictly necessary, but can speed things up a lot when applying for ILR under the 5 year rule. I didn't keep them and needed to get copies later.
- Make a note of every time you leave the UK and come back. This is not needed for ILR, but will be very useful when applying for naturalsation.
- Keep in touch with people who might be able to act as referees for you in 2009. You don't want to find yourself in the position of not having any referees when the the time comes.

[aga]

Hi Marco
If you apply for a spouse visa now, it will probably be granted in a few weeks or months, say during the first half of 2007. Two years later you can apply for ILR. As soon as you get it you can apply for naturalisation. So you may be only 2-3 years away from UK citizenship. If you do nothing now, you will be able to apply for ILR anyway in August 2009 (provided you have exercised Treaty rights in the previous 5 years). I

well, might be actually a good idea to apply for visa. But where should I apply that? IND told me on the phone that I should get it from POland but I am not going there . Can I obtain it from here somehow?



f you want to increase your chances of getting ILR, it might be worthwile applying for a spouse visa. A few bits of advice:

- Keep copies of all bank statements, P60's, payslips, etc. They are not all strictly necessary, but can speed things up a lot when applying for ILR under the 5 year rule. I didn't keep them and needed to get copies later.
- Make a note of every time you leave the UK and come back. This is not needed for ILR, but will be very useful when applying for naturalsation.
- Keep in touch with people who might be able to act as referees for you in 2009. You don't want to find yourself in the position of not having any referees when the the time comes.

Thank you so much for that. I have just post similar question on the other forum but that's very helpful indeed. I have most of my recent bank statements except for the first year where I did not think I might need it. From what you are saying they can be obtained from the bank but I guess they cost a bit. I dont have too many payslips but I worked only 7 months and then was struggling to find a job so set self-employment. I will be able to show all the documentation from that then. I dont get work on regular basis which I guess can cause potential problems??? I am economically sufficient though.
Regarding the referees I should be ok for that. I am in regular touch with most of people I know here.

[Marco 72]

Hi Aga,

bank statements should be easy to obtain. It cost me only £5 to get four years of bank statements from Barclays last year (I am not recommending Barclays as a bank, by the way , but the prices which other banks charge are probably similar).

About the application for a spouse visa, you should fill in form FLR (M), which can be downloaded here. You will find detailed instructions on pages 5, 6, 7. It looks like the fastest way for you to get a spouse visa would be to apply in person, since in that case 98% of applications are decided within 24 hours, according to the IND figures quoted on the form. If you wish to apply in person you will have to make an appointment with the IND. They will tell you what to bring with you. The phone number currently given on the IND website is 0870 606 7766 (see here). If you get your spouse visa now, then in exactly two years you can apply for ILR using form SET (M). Again, you can make an appointment with the IND for faster service. After that you can apply for naturalisation straight away. So you may be just over two years away from citizenship. Also, if you follow this route you don't have to worry about having to prove that you "exercised Treaty rights" in the previous years, so it won't be any problem if you were unemployed in the past. Form SET (M) only asks about your financial details at the time of your application.

By the way, I wouldn't worry about the "life in the UK test" until the time comes for you to apply for naturalisation. The rules regarding the test may well change by then.

Hope this helps,

Marco

[aga]

Hi Marco
thanks for the information about Bank statement. £5 pounds sounds reasonable amount so I will try to sort it out soon - need to check what statements I have:)
Thanks also for the info about the visa - and could you just clarify as you use FLR(M) and visa together? Is FLR(M) the same as visa but obtained in the UK instead of in my country?
As for the personal application, does not it cost $500 instead of £335? I guess it is worth the cost since it speeds things up .
and seems that this route is probably better for me than simply just staying on the EU route even if it cost so much...
Hmm you are right about the Life in the UK test not too worry at the moment. It is two years to go, and I guess it is not so difficult (passed many exams in my life:))). From what I gathered there is a book to buy and test is from the knowledge there
thanks, all of your info helps a lot

[Marco 72]

Hi Aga,

I'm afraid I hadn't taken costs into account. Yes, FLR (M) should be the right form for you, and it is the application form for a spouse visa. Unfortunately the process would be quite expensive: £500 if you choose to apply in person, and then £500 two years from now (or whatever the fee will be then) to apply for ILR. According to the FLR form 70% of postal applications are decided within 4 weeks, so that might be another option.

The spouse visa route might save you more than a year's wait, since if you apply for ILR in August 2009 on the 5 year rule you won't be able to do it in person, and it may well take several months. Mine took five months last year, but judging from a few recent messages on this board, it seems to be taking longer now.

The citizenship test is very easy. If you read chapters 2, 3 and 4 of the Home Office booklet you can pass it without any problems. It's probably not going to change by 2009, since the next census is going to take place in 2011. However by 2009 for all we know the test may well have been scrapped...

I'm glad to help, let mw know if you have any questions. In any case, remember I'm not an immigration lawyer, so it's probably worth giving the IND a call as well.

[John]

....... if you apply for ILR in August 2009 on the 5 year rule you won't be able to do it in person, and it may well take several months.

That application on form EEA3 is now, effectively, voluntary. Under the terms of the new EU/EEA regulations that came into force on 30.04.06 Permanent Residence happens as soon as Treaty Rights have been exercised in the UK for 5 years. And any time in the UK for an A8 national registered on the WRS does count towards the 5 years.

Accordingly the Naturalisation application could be made as soon as the five years is up, care being taken to enclose enough supporting evidence with the Naturalisation application to show that Permanent Residence was indeed obtained automatically, that is, to show that Treaty Rights (including WRS) have been exercised for the 5 year period.

[aga]

Thatis a problem here John. Because now it seems that my current status does not lead to anywhere. By EU route , you are saying WRS registration counts days towards 5 years and then one can get naturalisation. I did not registered for the working scheme as they said it was not necessary if I am british citizens' spouse. So my years here seem not to count (clarify it for me if I am wrong please)
On the other hand I dont have visa so this route has not started for me either.
Conclusion: I need to start from the scratch whatever route I choose
Might be worth to apply for FLR then - Marco thanks for clarifying all for me.