EEA Family Member and Natrulization

[Mido35]

Dear Sir, Madam

I will apply for my British citizenship soon as I am a Family Member of an EEA person which is my wife
but i am Egyptian and i will complete 6 years in the uk on 27/09/2014 as i entered the uk on 27/09/2008 i have a residence documentation which it will end 11/09/2014 i did not apply for ILR as i read in home office website that i do not have to apply for it and i can apply for the citizenship straight after completing 6 years in the UK but my question is as i heard from a solicitor that i can apply 2 month earlier because i do own a house in uk and because of that i can apply 2 month early please if you can advise me which date i can submit my application as we gonna apply together myself my wife and my son for the citizenship `

Kind Regards

[rosebead]

It's not called ILR in your case, it's known as Permanent Residence (EEA4). You can only apply EXACTLY 5 years from the date of your arrival in the UK, presuming you were already married when you arrived in the UK or if not you at least arrived on an EEA Family Permit. NO you most certainly cannot apply 2 months earlier just because you have property - what nonsense and it makes me wonder if your solicitor is properly trained! Yes it's true you do not have to apply for EEA4 before applying for British citizenship but you would still have to submit proof that your wife exercised Treaty rights for 5 years for the naturalisation application, the same as you would for EEA4. I would recommend getting EEA4 first because there's always a risk that the Home Office may be dissatisfied for whatever reason with the evidence you submit to prove that your wife exercised Treaty rights for 5 years, in which case they could fail your application and you would lose £900 with no right of appeal. At least the EEA4 application costs only £55 and you would have the right of appeal, plus an EEA4 submitted with your British naturalisation application would near enough guarantee that you'd get citizenship and with little or no risk of losing £900.

[Mido35]

thank you rosebead for such information that is why i wanted to check about this 2 month early i can apply for the citizenship cause i dosent make any logic for me as well but why most of the solicitors trying to take the case saying they will submit my application a month before my visa will finish which is 17.08.2014

[rosebead]

I have no idea why solicitors are misinforming you, it is worrying that there are so many badly-trained solicitors out there. I think they must be confused between ILR and naturalisation. I believe there is some discretion to apply a month early for ILR (though not for EEA4 which is different), however there is NO such discretion for naturalisation. The "12-month" rule is UK law under Section 6(1) of the British Nationality Act 1981 which states that on the DATE OF APPLICATION you must have had no restriction on your stay in the UK in the previous 12 months i.e. you were a Permanent Resident (point c below):

(2)The requirements referred to in sub-paragraph (1)(a) of this paragraph are—

(a)that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and

(b)that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c)that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d)that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.

[allenboo]

Rosebead please can you shed light on this. A non eu national acquired permanent residence after retaining residence following divorce from eu national. Can this non eu national with permanent residence sponsor a new spouse on eu regulations with eea family permit he is still under eu regulations.

[rosebead]

No I'm afraid not, allenboo. Under EEA regulations you can only sponsor a non-EU family member if you are an EU citizen. You would have to wait until 1 year after you become a Permanent Resident before you can apply for British citizenship - and then after that you would have to go the Surinder Singh route to obtain an automatic right of residence for your non-EU family member in the UK. Or alternatively as a settled person or a British citizen you can apply for your non-EU spouse to be with you under domestic UK immigration rules but you need to be earning £18600 per year to do that plus your spouse has to pass an English language test.

[allenboo]

Rosebead, do you feel I have to wait for one year because the application was made February 2013, which was five years from date of marriage, divorced in June 2012. It was initially refused, then appealed but Home Office withdraw and grant the permanent residence in April 2014.

[rosebead]

Allenboo, as a Permanent Resident and if you're earning £18,600 per annum, you can sponsor a non-EU spouse under domestic UK immigration rules now. You don't have to wait for naturalisation to do that.

I'd agree with you that you became a Permanent Resident (PR) in February 2013. However with a PR card dated April 2014, for a naturalisation application the UKVI will still want to see evidence that you actually became PR on February 2013 as your PR card does not attest to that. The question is can you provide evidence to support that you were PR on February 2013? I suggest you post a thread of your own about that. Even if you had British citizenship, you would still only be able to sponsor your spouse under UK rules (£18,600 minimum earnings and English test) which you can do now as a Permanent Resident anyway. If you are a British citizen and don't earn £18,600 p.a. and are not able to, then you could use EU rules to sponsor your wife, but you would have to migrate to the EU (not UK) with your spouse for a recommended minimum of 6 months and work there, after which you could be eligible to return to the UK under Regulation 9 of the Immigration (EEA) Regulations 2006 as amended in 2013 - what is known as the Surinder Singh route. But at least with the SS route there is no minimum earnings requirement nor an English test.

[allenboo]

Rosebead, thanks for taking your time to reply. Just one last question. To show the ukvi if I qualify for naturalisation, do you think it will be enough to show my certificate of application, refusal letter, Home office consideration and withdraw from court letters. Do you think it is a necessary to include again my ex wife treaty rights and my treaty rights because thay saw these that was why they withdraw from the appeal and grant PR. Thanks again for your opinions.

[Mido35]

thank you Rosebead for your reply , but can i ask do i start to count from the first EEA Family member work permit was granted or from the time of my marriage contract date ,,,i mean the first 5 years start date from when i can count it
and one last thing do i have valid passport at least for 6 month as my passport will expire on jan 2015
thanks

[dalebutt]

Rosebead Perhaps you've sincerely overlooked the fact that PR is obtained automatically, allenboo is indeed due for naturalisation and can apply to naturalise as a BC, the dates on the PR does not mean PR was attained on the day, it is counted 5 years from the date of marriage solemnisation, provided treaty rights have been exercised then he should qualify to apply for naturalisation now.

[Jambo]

The lawyer was actually correct. There is a discretion for the 12 months rule but I would not recommend using it. Just wait another two months and apply without the need for discretion.

I have no idea why solicitors are misinforming you, it is worrying that there are so many badly-trained solicitors out there. I think they must be confused between ILR and naturalisation. I believe there is some discretion to apply a month early for ILR (though not for EEA4 which is different), however there is NO such discretion for naturalisation. The "12-month" rule is UK law under Section 6(1) of the British Nationality Act 1981 which states that on the DATE OF APPLICATION you must have had no restriction on your stay in the UK in the previous 12 months i.e. you were a Permanent Resident (point c below):

(2)The requirements referred to in sub-paragraph (1)(a) of this paragraph are—

(a)that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and

(b)that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c)that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d)that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.

[rosebead]

Rosebead Perhaps you've sincerely overlooked the fact that PR is obtained automatically, allenboo is indeed due for naturalisation and can apply to naturalise as a BC, the dates on the PR does not mean PR was attained on the day, it is counted 5 years from the date of marriage solemnisation, provided treaty rights have been exercised then he should qualify to apply for naturalisation now.

Dalebutt, I did say so in my post that I thought allenboo was PR in February 2103, however his PR card only attests to him being PR in April 2014 and not earlier. For the naturalisation application, the Home Office will still need to see evidence that allenboo was PR on February 2013. Unfortunatey sending in just his PR card will not cut it with the Home Office as it does not prove he was PR in February 2013, which is why I asked him if he had evidence to support that he was PR in February 2013, as he can submit that. Taken from the FAQ on this board:

Q5: I'm a EEA national/family member of EEA national. When can I apply for naturalisation?

Under EEA regulations, Permanent Residence status is obtained automatically after 5 years of exercising treaty rights. You need to hold PR status for 1 year to be eligible for naturalisation (unless you are married to a BC) so effectively you can apply after 6 years of residence in the UK. Having a PR Confirmation (following EEA3/EEA4 application) is optional and is not required in order to apply for naturalisation.

You have two options:

1. Apply after 6 years in the UK. This includes 5 years of exercising treaty rights + 1 year with PR. You will need to provide proof of the 5 years (similar to what is needed in EEA3/EEA4 application). Form AN has a specific section (Q2.4-2.6) for such application.
2. Apply 1 year after the issue date of the PR Confirmation (EEA3/EEA4). In this case, there is no need to prove treaty rights again and normally just your passport (and Life in the UK test) is required.

If you hold a PR Confirmation for less than 1 year but have lived in the UK for 6 years, you can apply using option (1). The PR confirmation can only be used if you apply 1 year after the issue date. The reason is that the PR Confirmation only contains one date - issue date. It doesn't state when the PR status was actually acquired. If you want to use a PR date prior to the issue date, you will need to provide treaty rights proof to prove it.

[rosebead]

On second thoughts I shouldn't have used the word "discretion" in my post when saying there is no discretion to applying early for naturalisation - what I should have said is that there is no automatic consideration of your application if you submit it early. Yes it's true under 2(c) of Section 6(1) of the British Nationality Act 1981 that if the the Secretary of State "thinks fit" under "special circumstances" he will accept an early application, but the lawyers are making it sound like it's a CERTAINTY which I think is bad advice and which I don't like.

[allenboo]

Thanks all for your valued opinions. I will rather wait than go through the whole thing of treaty rights again. Its already 10months to go. A little more patient won't be so bad.

[rosebead]

Sorry my mistake, the reference is 2(c) of Schedule 1 of the BNA 1981 (Schedule 1 details the requirements for Section 6(1) of the BNA).

[Mido35]

I have been contacted yesterday by the Capita regarding my overstayed visa.and they did ask lots of questions which i didanswered
and they updated my file and they will send it to HO. my story is :::

I have arrived in the UK on the 27th of September 2008 on an EEA family member visa vaid for six months. In February 2009 I have applied for the 5 years EEA family member visa in home office and I have received it on the 17th of September 2009.
Me and my wife have been in the UK for over six years now and we both thought that after exercising the treaty rights for the continuance of 5 years we have both acquired permanent residency as per the guidance on Your website regarding the permanent residency :
https://www.gov.uk/government/uploads/s ... apter6.pdf
, but the phone call yesterday regarding overstayed visa really has put doubts in our minds.
On the 26th of September 2014 we have submitted to Home office all our documents for the naturalisation process for our family and I would like to clear all the doubts regarding my alleged overstayed visa in order to satisfy all the requirements for the naturalization.
Is there anything we have missed in a process ? would you be able to help us in clearing the doubts regarding the permanent residency that we both thought we have?

[Mido35]

Eligibility criteria: 6 years EEA Family Member ( 6 years rule without PR )
Language criteria met: Life in The UK+B1 English
Current nationality: Egyptian
Method of application: Post, it is Joint application myself+my wife (EEA National ) + My son (Born in uk)
Council name if NCS used: None
Date of application: 27/09/2014
Payment method: Credit Card
Date of receipt by UKBA: 28/09/2014
Date of acknowlegment: 04/10/2014
Date of debit or clearance of fees: 30/09/2014
Date approval received: Waiting
Date of ceremony: Waiting

i called home office to ask for update on 25\03/15 and i have been told that the case worker will contact me ....
today 04/04/2015i have received all my document back and a letter from home office saying:
{thank you for submitting the enclosed documents in support of your application of British citizenship , for your convenience the enclosed documents has been noted and returned to you . but it may be necessary to ask for them to be returned }.
and it has the case worker name and signature , did any body came across something like that and after more 6 month still i dont know what is going on they didnt say it will be more time to consider as i saw in this forum {3-6 month letter } and i dont know why they sent my documents back ,please any body can helpppppp