EEA nationals - wife refused citizenship - treaty rights

[Overfiend1981]

Dear All,

I'd greatly appreciate help on the above matter.

We are Polish nationals who have been in UK for 11 years now. In November 2015 we have submitted application for citizenship for my wife. This application just came back to us - and it was refused on a basis of "not exercising treaty rights for 5 continuous years".

I intend to challenge this ruling and need help to formulate a covering letter.

Summary of circumstances is as follows.

- we have presented evidence from 2009 to 2016 (P60s / P45), her residence permit card, work permits etc.
- between 2009 and 2013 she was a single mother with a child from previous relationship working 16 hours and in receipt of tax credit and housing benefit.
- we got married in 2013, since then she works 10 hours, she is classed as housewife and relies on my income (which is on the higher end of average UK salaries, i.e. £50k+) - this shouldn't affect neither right to reside nor ability to exercise treaty rights.
- personally I have been exercising treaty rights since 2005 and this was accepted in connection to the citizenship application for our younger daughter, which was submitted in 2014 and was successful.
- we haven't submitted any evidence regarding me personally as we thought it was not deemed necessary for her application.

She was in receipt of benefits (HB/CTB + tax credits) before year 2013, but as a single mother her rights to reside and exercising treaty rights should not be affected. - the guidance states that "person should generally be able to claim public funds without their right to reside being affected". Working 16 hours is classed as full time for a single parent, therefore she should retain her status through that period. After 2013 her status shouldn't be affected as she relies on my funds to live. She still works 10 hours a week, and has a full intention of returning to work full time when our second child goes to school (which will be 2017 as she is now 3 years old).

As such I fail to understand the decision to refuse her citizenship. I fully intend to appeal this decision, but before going through the process, I'm trying to find any technicalities that I might have missed? Or is it just overzealous, trigger-happy caseworker without sufficient knowledge of all relevant procedures?

Any help would be greatly appreciated.

Kind regards

[CR001]

You can't appeal a refused citizenship application. You can only ask for a reconsideration at a cost.

Does your wife hold a document confirming permanent residence?

[Overfiend1981]

Apologies I was talking about reconsideration.

No she doesn't - but she has a residence permit all the way from 2009.

Kind regards

[Overfiend1981]

Besides I don't believe that a PR document is actually required for citizenship. It was definitely not requested of me when I applied for naturalisation of our daughter using my treaty rights - as I also dont' have one.

My understanding is that PR is obtained automatically through residence over number of years, and we have proven her residence using P60's etc.

[ouflak1]

We are Polish nationals who have been in UK for 11 years now. In November 2015 we have submitted application for citizenship for my wife.

From November 12th, 2015 onward, a PR card was required to be submitted with a citizenship application regardless of when permanent residence was actually acquired. Was your application on or after this date?

[ohara]

My understanding is that PR is obtained automatically through residence over number of years, and we have proven her residence using P60's etc.

Not residency, but exercising treaty rights. Having a PR card or document does not confer PR, it just confirms it. There is no need to possess one but it is now mandatory for citizenship applications.

As ouflak1 says, the requirement was only added on 12th November 2015.

[Overfiend1981]

I'm pretty sure that application was submitted just before 12th of November 2015. I'm currently at work but will double check and confirm.

I presume if it wasn't and I in fact need PR card then I will have to apply again after getting one - that is clear.

However if it was before Nov the 12th what would be my options?

Kind regards
Paul

[LilyLalilu]

Does it state more details in the rejection letter, i.e. which period of treaty rights they did not consider to be valid? Did you have a correct WRS registration in place?

[Overfiend1981]

It doesn't state there is only one sentence "As you have not been exercising treaty right for continuous 5 years the application has been refused". Then it goes on about reconsideration if we choose to do so.

We definitely have correct WRS in place covering period of almost 3 years (with every employer) when she came to UK, even though it's only required for 12 months. This was checked multiple times.

[LilyLalilu]

Ok, good about the WRS!
What they may have a problem with is the period where she was only working 10 hours but was self-sufficient through your income. They may think she was claiming to exercise treaty rights as a self-sufficient person, which is only possible if she also had CSI at the same time. However, she did exercise treaty rights during this time as she was married to you who was working full-time at this time. Maybe the caseworker has misunderstood this and therefore considered her as not exercising treaty rights during this time because she did not have CSI, although she did of course had a right to reside with you as her EEA national sponsor who was a worker. It's all speculation at this point as they obviously didn't bother to clarify details of the rejection

[Overfiend1981]

So basically I should do their work for them, outline the situation, and ask for a reconsideration on a basis that she is a spouse of a person exercising treaty rights and since 2013 is using my rights for the application?

I presume all relevant evidence regarding my income / exercising of treaty rights etc would be required with the application as well?

[LilyLalilu]

Yes, this would all be required.
As we do not know which period they had a problem with it is probably best to address each treaty right period with a thorough explanation as to why she was exercising treaty rights during this time etc. Just to make it fool-proof

[Overfiend1981]

I presume the fact that WRS scheme covers years 2005-2008 and our evidence for exercising treaty rights covers years 2010-2016 doesn't matter?

My understanding is that WRS scheme registration period doesn't need to tie with the period of evidence covering exercise of treaty rights Is that correct?

[noajthan]

I presume the fact that WRS scheme covers years 2005-2008 and our evidence for exercising treaty rights covers years 2010-2016 doesn't matter?

My understanding is that WRS scheme registration period doesn't need to tie with the period of evidence covering exercise of treaty rights Is that correct?

Correct, the applicant just needs to have completed 12 months fully and properly under WRS (if not exempt).
Then subsequent work as a qualified person maintains their PR clock running.

If not properly registered for WRS, the applicant would only be considered to have been exercising treaty rights (if/as a worker) since May 2011;
ie after WRS had 'officially' ended.

[noajthan]

So basically I should do their work for them, outline the situation, and ask for a reconsideration on a basis that she is a spouse of a person exercising treaty rights and since 2013 is using my rights for the application?

I presume all relevant evidence regarding my income / exercising of treaty rights etc would be required with the application as well?

Yes, you need to make the running.

Package the application and now the reconsideration to essentially spoonfeed the caseworker.
Back it with irrefutable if not unimpeachable documentary supporting evidence to make your case.
Don't give HO the Spam of 'wriggle room'.

The refusal could be as simple as an error along the lines of 'no PR card, no approval' even if you applied before the rules changed in November (to require a PR card as one piece of mandatory evidence).
That would clearly be an admin/procedural error on the part of HO and just the kind of wrong that reconsideration is there to put right.

[noajthan]

Dear All,

I'd greatly appreciate help on the above matter.

We are Polish nationals who have been in UK for 11 years now. In November 2015 we have submitted application for citizenship for my wife. This application just came back to us - and it was refused on a basis of "not exercising treaty rights for 5 continuous years".

I intend to challenge this ruling and need help to formulate a covering letter.

Summary of circumstances is as follows.

- we have presented evidence from 2009 to 2016 (P60s / P45), her residence permit card, work permits etc.
- between 2009 and 2013 she was a single mother with a child from previous relationship working 16 hours and in receipt of tax credit and housing benefit.
- we got married in 2013, since then she works 10 hours, she is classed as housewife and relies on my income (which is on the higher end of average UK salaries, i.e. £50k+) - this shouldn't affect neither right to reside nor ability to exercise treaty rights.
- personally I have been exercising treaty rights since 2005 and this was accepted in connection to the citizenship application for our younger daughter, which was submitted in 2014 and was successful.
- we haven't submitted any evidence regarding me personally as we thought it was not deemed necessary for her application.

...

Any help would be greatly appreciated.

Kind regards

I now see several complications here...

1) Wife was not married to you until 2013. So you were not her EEA sponsor until 2013.
(You don't mention having taken the EFM route at all).

Did you make it clear wife was exercising treaty rights in own right until 2013? - if that is part of her qualifying period (from 2010).

2) Was your wife fully/properly registered for WRS for first 12 months - including re-registering after any change/s of employer/s?

3) You married in 2013 and seem to want to switch so that wife is now a dependent direct family member of you as sponsor/spouse.

That is probably acceptable, however you need to have submitted solid evidence of being a qualified person or a settled person with PR.
Just assuming similar evidence was accepted for a separate passport application made to HMPO a few years ago is not good enough.

4)
Rather worryingly you have mentioned that:

we haven't submitted any evidence regarding me personally as we thought it was not deemed necessary for her application.

This may have led the caseworker to conclude you were either not a qp or did not have PR. (They won't necessarily have cross-checked with HMPO colleagues and who knows what is held ion you in the CID and other HO databanks).

You need to have submitted full id, relationship, residency, and treaty rights/PR details.
Just as you should have submitted comprehensive evidence for your wife.

5) Did you wife have any spells of maternity leave during her qualifying period?
If so, how many? How long for?

6) Have you or wife enjoyed any prolonged absences from UK?
If so, how long for?

Suggest addressing these aspects in your reconsideration, particularly #1-4.

[Overfiend1981]

Dear All,

I'd greatly appreciate help on the above matter.

We are Polish nationals who have been in UK for 11 years now. In November 2015 we have submitted application for citizenship for my wife. This application just came back to us - and it was refused on a basis of "not exercising treaty rights for 5 continuous years".

I intend to challenge this ruling and need help to formulate a covering letter.

Summary of circumstances is as follows.

- we have presented evidence from 2009 to 2016 (P60s / P45), her residence permit card, work permits etc.
- between 2009 and 2013 she was a single mother with a child from previous relationship working 16 hours and in receipt of tax credit and housing benefit.
- we got married in 2013, since then she works 10 hours, she is classed as housewife and relies on my income (which is on the higher end of average UK salaries, i.e. £50k+) - this shouldn't affect neither right to reside nor ability to exercise treaty rights.
- personally I have been exercising treaty rights since 2005 and this was accepted in connection to the citizenship application for our younger daughter, which was submitted in 2014 and was successful.
- we haven't submitted any evidence regarding me personally as we thought it was not deemed necessary for her application.

...

Any help would be greatly appreciated.

Kind regards

I now see several complications here...

1) Wife was not married to you until 2013. So you were not her EEA sponsor until 2013.
(You don't mention having taken the EFM route at all).

Did you make it clear wife was exercising treaty rights in own right until 2013? - if that is part of her qualifying period (from 2010).

2) Was your wife fully/properly registered for WRS for first 12 months - including re-registering after any change/s of employer/s?

3) You married in 2013 and seem to want to switch so that wife is now a dependent direct family member of you as sponsor/spouse.

That is probably acceptable, however you need to have submitted solid evidence of being a qualified person or a settled person with PR.
Just assuming similar evidence was accepted for a separate passport application made to HMPO a few years ago is not good enough.

4)
Rather worryingly you have mentioned that:

we haven't submitted any evidence regarding me personally as we thought it was not deemed necessary for her application.

This may have led the caseworker to conclude you were either not a qp or did not have PR. (They won't necessarily have cross-checked with HMPO colleagues and who knows what is held ion you in the CID and other HO databanks).

You need to have submitted full id, relationship, residency, and treaty rights/PR details.
Just as you should have submitted comprehensive evidence for your wife.

5) Did you wife have any spells of maternity leave during her qualifying period?
If so, how many? How long for?

6) Have you or wife enjoyed any prolonged absences from UK?
If so, how long for?

Suggest addressing these aspects in your reconsideration, particularly #1-4.

Hi noajthan,

Appreciate the detailed response...let me clarify all of those points for you.

1. Correct. I wasn't until 2013. Before 2013 she was single mom with a child working 16 hours (which is classed as full time for a single parent) and in receipt of tax credit / HB. Thus exercising her treaty rights as a worker in her own right. It was a part of qualifying period.

2. Yes - the WRS sheme was done correctly with re-registration for every employer etc. This was for years between 2005 and 2008 thus much longer than required 12 months.

3. Yes - I have married her in 2013 and wanted to switch that my wife is dependent family member of me as a spouse. - I suspect that might be part of the issue as with this application we haven't really given any evidence of me exercising treaty rights in my own right.

4. As above. - I thought evidence of me exercising treaty rights was not relevant to the application ( I did submit income details though) - will address this.

5. Yes - she was on statutory maternity pay during late pregnancy and after our daughter was born - about 6-7 months total. Just one period though.

6. Never - we went twice for a week long vacation and have visited Poland twice (also for about a week each time) but nothing more.

[noajthan]

Hi noajthan,

Appreciate the detailed response...let me clarify all of those points for you.

1. Correct. I wasn't until 2013. Before 2013 she was single mom with a child working 16 hours (which is classed as full time for a single parent) and in receipt of tax credit / HB. Thus exercising her treaty rights as a worker in her own right. It was a part of qualifying period.

2. Yes - the WRS sheme was done correctly with re-registration for every employer etc. This was for years between 2005 and 2008 thus much longer than required 12 months.

3. Yes - I have married her in 2013 and wanted to switch that my wife is dependent family member of me as a spouse. - I suspect that might be part of the issue as with this application we haven't really given any evidence of me exercising treaty rights in my own right.

4. As above. - I thought evidence of me exercising treaty rights was not relevant to the application ( I did submit income details though) - will address this.

5. Yes - she was on statutory maternity pay during late pregnancy and after our daughter was born - about 6-7 months total. Just one period though.

6. Never - we went twice for a week long vacation and have visited Poland twice (also for about a week each time) but nothing more.

1) You have a slightly complex case here.
Suggest you really need to spell all this out in a cogent cover letter or explanatory paragraph.

Make sure caseworker can readily understand the 2 parts to the qualifying period:
a) spouse, an EEA national, qualifying in own right from 2010 to 2013 (based on earlier WRS registration to 'legalise' her status as a worker).
&
b) 2013 - 2015: your wife as the EEA but dependent direct family member of you as the EEA spouse/sponsor.

2) Good. Congratulations on your foresight, this has caught many good, hard-working A8 nationals out.

3) Your lack of supporting evidence as to your status is a major flaw.

Don't assume HO will do legwork for you even if aware you previously proved your PR status via HMPO;
namely a different unit (if not different department) that may or may not have come up on HO computer records for you.

4) See #3

5) If maternity leave was at the later time when sponsored by you then no impact as wife's activity when a dependent is immaterial (as long as legal ofcourse).

If wife was on maternity leave when exercising treaty rights in her own right she should have retained her worker status. Supply evidence in this case.

6) All good. You are allowed time off for good behaviour (<<< English humour)

[Overfiend1981]

Great,

Thank you everyone for your help and support. I now have a valid angle to approach this.

Much appreciated. I will re-submit and keep the thread up to date with results for future generations

Kind regards

[noajthan]

Great,

Thank you everyone for your help and support. I now have a valid angle to approach this.

Much appreciated. I will re-submit and keep the thread up to date with results for future generations

Kind regards

Remember this is not an appeal.
Be aware a reconsideration is really to correct the HO's administative &/or procedural errors.

For example, if the caseworker mistakenly refused your application due to no evidence of a PR card if the application was submitted before that requirement actually came in.

If the refusal is due to your lack of supporting information for any aspect of your case then you may or may not be fortunate in the outcome.
HO could maintain the application was correctly weighed up and assessed, and the subsequent refusal was legitimate, based on the information and evidence as originally submitted.
Be aware of this and plan accordingly.

Best of British luck.

[Overfiend1981]

Hi Noajthan,

My understand from what are you saying is that because I haven't previously provided evidence of me exercising treaty rights and being wife's sponsor, they MIGHT reconsider If I'm being polite enough and spoon-feed them.....or they might just tell me to go away altogether on the basis that ORIGINAL application was assessed correctly as it didn't have enough evidence?

All depend on the mood of a caseworker? And once this happens ( I mean refusal again) that's it? Only way is to apply again?

[CR001]

Yes, basically as you have said. Though not on the mood of the caseworker, more on the rules in place for citizenship and decisions based on submitted evidence.

You need to also bear in mind that there is no timeframe within which HO have to process reconsideration requests. You/she could wait many many months and possibly a year or more before you hear of the outcome of your request.

[ouflak1]

Do let us know what date you applied as that is rather critically important. No matter how strong your case is, if you applied without a PR card after November 12th, I can't see how you will have a successful outcome with a reconsideration request.