Applied October 2015 - reject because of change in November!

[kostasvl]

Apologies if this has been discussed already. I did a reasonable amount of searching first.

I applied for citizenship in October 2015. In November, a change was made that meant I had to have a permanent residence card. I was rejected because of this. I feel this is extremely unfair!

Anyone else in a similar situation? Is it worth pursuing it? On my own or with legal advice?

My rejection letter arrived on April 3rd, and ever since then, I've been cursing my inability to understand the (reasonably clear) Booklet AN. The referendum gave me renewed determination though, and today I realised that there was a change that took place in November . The requirement changed from:

"New immigration regulations came into force on 30 April 2006. If you are a national of a country which is a member state of the EEA or Switzerland, or the family member of such a person, you will automatically have permanent residence status after exercising EEA free movement rights in the UK for any continuous period of 5 years ending on or after 30 April 2006, and therefore will not have to apply for indefinite leave to remain."

...to...

"If you are a national of a country which is a member state of the EEA or Switzerland, or the
family member of such a person, you will automatically have permanent residence status
after exercising EEA free movement rights in the UK for any continuous period of 5 years
ending on or after 30 April 2006. You should apply for a permanent residence card to prove
that you hold that status before applying for citizenship."

How was I supposed to know this when I was filling in the application form in the months prior to November? I knew about an upcoming change to the language requirements in November, but not this. Even if I knew though, I wouldn't have thought it would apply retroactively for applications in progress! Is there precedent for this?

Aside from a confirmation letter (14th of November...), I heard nothing from the Home Office, until the 20th of February, when I received a letter asking me for “evidence that you were exercising treaty rights for a continuous period of 5 years…”. It went on to say: “Evidence should be from the earliest date while you were residing in the UK.” Such a requirement was not in any official document I had read! I found myself having to track down bank statements from 2001 (no way), medical insurance while I was a student (what? I didn’t know I had to have such documents back then!), and the acceptance letter from the university (which I haven’t kept). All I was able to send them was my university degree and a letter explaining the situation. This was seemingly ignored, and I was rejected in April. This time, the letter said: “…required to be free of immigration restrictions on the date of application… EEA nationals will be able to meet this requirement once they have obtained permanent residence…”.

Now I see that form NR (application for review) costs £272 and a fresh application would cost £1236! I don’t know what to do.

Any advice would be appreciated! Thanks!

Kind regards
Kostas

[LilyLalilu]

If you applied in October you would not have needed a DCPR so this should not be a reason for rejection.
Did you send proof that you were exercising treaty rights for 5 continuous years (i.e. had acquired PR status) and did this proof show that you acquired PR at least one year before you made your application for citizenship (unless you are married to a British citizen)?

[kostasvl]

Thanks for helping!

Initially, I had sent:

1) EU passport, of course
2) UK driving licence
3) Masters degree from 2006
4) HMRC Tax Calculation 2014-2015
5) 5 years of mortgage statements (from January 2010, detailing 2009)
6) One of my references was my lecturer from 2001 to 2005

After that letter in February, I also sent:

1) Bachelors degree from 2005
2) P45 and P11D from my industrial placement in 2003-4 (only documents I had)
3) Acceptance letter, contract (I think) and some of my first payslips from my first job in 2006

If there was ever any document stating exactly what proof of PR should be (beyond my passport), I have managed to miss it. I promise I’ve read the AN family of documents cover to cover, multiple times! But that was before the amendments in November 2015…

[LilyLalilu]

I believe form/guide AN says that you need to show that you are free from immigration time restrictions, which as an EEA national means showing proof that you had acquired Permanent Residence.
The documents you have sent do not show this and the rejection therefore seems valid to me as you unfortunately did not follow the instructions/provided the required proofs.
You may wish to send proof of having acquired PR with a reconsideration now however, as you initially failed to send it, the reconsideration would very likely also be rejected, sorry.

Maybe anyone else has any better ideas but your options (if any) seem very limited at the moment...

[kostasvl]

This is what booklet AN said at the time I applied:

"New immigration regulations came into force on 30 April 2006. If you are a national of a country which is a member state of the EEA or Switzerland, or the family member of such a person, you will automatically have permanent residence status after exercising EEA free movement rights in the UK for any continuous period of 5 years ending on or after 30 April 2006, and therefore will not have to apply for indefinite leave to remain."

The fact that they felt they had to clarify that in November says a lot, I think.

I just remembered this: In the back pages of form AN ("Supporting Documents"), it says (or did last year):

SECTION 4 Evidence of settlement for applicants from ... the European Economic Area ... see pages 10 to 11 of the Booklet AN (that's the above quote)
• Your valid passport or valid EEA national identity card as evidence of your nationality; And
• A document certifying permanent residence or a permanent residence card issued by UKVI
...
Note: Whilst the submission of a document certifying permanent residence or a permanent residence card is not mandatory, failure to submit one may lead to delays .... If you do not provide a document certifying permanent residence ...then you must provide the following for consideration:
• Evidence of exercising Treaty Rights for 5 years for the relevant EEA national. This may include:
• Evidence of funds and comprehensive sickness insurance ...
• Evidence of state pension ...
• Medical report if permanently incapacitated
• Evidence of five years continuous residence in the UK (Hence my 5 years of mortgage statements, addressed to myself, sent to my UK house address...)
• If applying as the direct family member of an EEA national, ...
SECTION 5 Evidence of freedom from immigration time restrictions:required for all applicants except those covered by SECTION 4 above.

I don't have any funds worthy of mention, and I don't receive pension, but I can't think why the mortgage statements are not proof enough that I am actually residing in this country. Not to mention my tax records. They have my NI number, so my monthly salary should also prove a few things.

I dread looking into what the actual requirements are for the residence card. Continuous (daily?) DNA evidence from every place I stayed in the last 6 years?

[costarica]

In December 2014 a new change came for a asylum and refuge applicants, and were 1000's who get refused even they have applied before December 2014 , this is the home office , once u paid the fee they don't care about no one because the fee is not refundable, I'm not sure about your time spent in U.K. Wether student or worker but to accur a pr is not mean u only need to be here 5 contunus years but there another factors as insurance and wrc ... , if u believe u qualify with the documents u provided I advice u to go for reconsideration if not put ur hand in ur pocket and give it ago for a fresh application better for u , good luck

[LilyLalilu]

Mortgage statements do show that you were living here but they do not show that you were exercising treaty rights for 5 continuous years (which is required to attain PR status) Did you exercise treaty rights as a worker during those 5 years? Then you should have sent 5xP60s or employer letters or NI contribution statements or an employment history from HMRC confirming this, the burden of proof is on the applicant, HO unfortunately do not check this for you.

[kostasvl]

(Again, thanks for your detailed replies , I really appreciate it!)

...you should have sent 5xP60s...

I accept that. It's clear and obvious, now that you mention it. However, why does the Home Office go out of its way to avoid mentioning any of those things? Or even something as simple as "proof of employment"? I could have obtained and provided them with such documents. Instead, the closest thing they ask for (in page 31 of 32!) is "Evidence of five years continuous residence in the UK".

Just to confuse me even more, they sent me that letter during the application process, where, admittedly..., they asked for the same kind of thing you talked about, but they explicitly stated: “Evidence should be from the earliest date while you were residing in the UK.”. How can that be right? It's not mentioned anywhere else that I've seen. Are people who came here in the 1990s condemned to never be able to apply? Unless they have kept 25 years worth of bank statements (banks only keep 7 years) and ... medical insurance documents, etc. I was a student back then, and I have kept very little from those days. To make matters worse, that letter barely gave me 10 days to respond, threatening to reject my application if I miss their arbitrary deadline! There was no time to contact the university... I sent an email to the Home Office that same night, asking for clarifications, but they ignored me (to this day), so I was forced to send those secondary documents (see my earlier reply) asap - they were all I had.

The rejection letter reverts to a generic “you have not been exercising your treaty rights”. They kept my £1005, so why be helpful and actually tell me exactly what I did wrong?

the burden of proof is on the applicant

I take issue with that!
- Why would a document from HMRC have any validity if they are not going to check it? If they ARE going to check it, why can't they do it proactively?
- Why is my university degree not proof enough that I was a student? Must I also prove that I wasn't supporting myself through drug trafficking?
- Everyone and their mother seems to be able to legally do a full credit check on me in an instant, at the slightest provocation and at no cost to me. Couldn't the Home Office use some of that £1005 to do the same kind of thing? If not, what do they need so much money for? What do they need the extra £300 for, in the latest fee?
- I'm pretty sure that they mention that they will check my criminal record, even outside of the UK. They sure have a very confused and imbalanced view of where the burden of proof lies.

(none of the sarcasm above is directed at anyone here! )

I wanted to go into how the internet should have made the entire application process 20 times simpler and cheaper, but it's too obvious and therefore unnecessary.

Anyway, thanks again. Does anyone at all think I have a chance with that Application For Review (NR), on the basis of confusing (and downright misleading!) communication from the Home Office?

[secret.simon]

Ignorantia juris non excusat - Ignorance of the law is no excuse.

[kostasvl]

Ignorantia juris non excusat - Ignorance of the law is no excuse.

I'm not sure how that's relevant my friend. Which part of this whole saga are you referring to?

[CelsoPin]

you should be precise and demonstrate you exercise the treaty rights for 5 years without any interruption.
for your course, obtain a letter from the university stating the date of starting and finishing. the same for any job you had. any gap should be fully supported (e.g. evidence of job seeking).
anyway, it seems you will now need an ILR BUT the advice is the same.

p.s. did you use the Nationality Checking Service?

[rotor]

Hi kostasvl,

I understand your frustration, my own experiences with the UK Home Office have been very stressful, but I am almost at the end now; I can see the light at the end of the tunnel.

Now... it seems pretty clear that you didn't provide satisfactory evidence of exercising treaty rights. The change in November 2015 was only a change in the formality required. Before November, as long as you PROVED everything in the Citizenship application, you could skip obtaining PR. You still had to PROVE that you had exercised your treaty rights though. Post November, you now have to first obtain PR, and then obtain Citizenship.

You ask why your University degree is not proof. Have you heard of distance learning? How does the HO know you attended class in the UK for those years unless you explicitly provide the evidence? You also mentioned the mortgage payments, but they don't constitute evidence of residence (you could be paying the mortgage from your home country, while renting the place out) or of exercising treaty rights (owning a house in the UK is not evidence of exercising treaty rights).

You may have fallen victim to the same thing I did: I am a good person, and everything I do is in good faith, so I don't understand why the HO doesn't trust me when I tell them I'm a good guy.

Unless the £300 appeal process allows you to resubmit all the evidence, I would give up on that avenue (and lose the £1000 you paid -- which by the way has now gone up to £1200), and submit for PR. It takes six months, and costs £65, so you won't be throwing more good money after bad. If the £300 appeal *does* allow you to submit as much new evidence as you like, then that could be an alternative, but you still need to be 100% sure you have all the evidence needed, otherwise you are just wasting a further £300.

For me and my wife's applications, I gave:

Evidence of residence (I gave 6 full years, just so there wasn't any confusion):
- 2 bills for every year (in my case, Council Tax and Thames Water)
- My mortgage offer (we bought a place towards the end of the 5 year period)

Evidence of self-employment (6 full years):
- P60 x 6
- Self Assessment Summary (from my accounting software) x 6
- SA302 x 6
- Recent Self Assessment Statement (the HMRC sends these periodically, I assume they can be requested)
- Payroll summary for each year
- Sampling of payslips from the most recent year
- Sampling of personal Bank Statements showing money received from salary and dividends, and money being paid to self-assessment
- Certificate of Incorporation of my company
- Share certificate
- VAT Registration certificate
- Annual Return x 6
- Corporation Tax summary x 6 (from my accounting software)
- CT600 x 6
- VAT Summary x 6
- Sampling of Invoices for each year, showing £0 due (i.e. full payment has been received each time)
- Dividend declarations for the 6 years
- Sampling of Bank Statements from Business account for the 6 years, showing money received from paid invoices, money paid towards VAT, Corporation Tax, Salary
- Most recent financial statements (from my accountants)

The reason I list all of this is to show how much evidence is necessary. Just like the prosecutor in a court case has the burden of proving the guilt of the accused, in this case, you have the burden of proving to the Home Office that you exercised your treaty rights during 5 years. It's not their job to investigate you, it's their job to review the evidence you provide.

[kostasvl]

Thanks again – I appreciate the amazingly detailed and helpful responses!

I don’t dispute that this level of detail was necessary after all, or whether it makes sense (I now see that it does). My issue is with the lack of supporting information for someone in my situation, an EU citizen applying without using the Nationality Checking Service and with only the AN documents to guide him. There are 3 or 4 of those documents, and the closest relevant guidance for me in them is “Evidence of five years continuous residence in the UK”. Compare that with the list of documents that you (somehow) realised were actually necessary!

My friend above says I should have been precise. Why can’t I expect precision on the part of the HO? There is no excuse for not openly listing exactly what is required in each and every case. For £1300, I would expect a direct line to the agent handling my case (and knighthood from the Queen ). Instead, the HO charges separately for using the NCS (not to mention the 6+ months waiting period for the privilege).

Reading the AN Guide again now makes me angry:

We may ask H.M. Revenue & Customs for confirmation that your tax and National Insurance affairs are in order. When you sign the application form you will be giving your consent for us to approach them. … If you do not pay income tax through PAYE you must demonstrate ….

Dear HO, I didn’t just give you consent to do this. I gave you £1000 fully expecting you to do stuff like that and more! That amount of money implies some effort on your part!

If we need more documents we will write and ask you for them. We will give you three weeks to respond.

3 weeks? Ha! There were only 15 actual days from the date on the letter to the deadline mentioned in it. As it took 5 days for the letter to reach me, I had 10 actual days to respond!

We will deal with any enquiries courteously and promptly.

Except you never even replied to any of my emails or letters. I asked for clarifications regarding the aforementioned letter, and was ignored. I also asked for my passport to be returned early, twice, and that was ignored as well.

Now I’m expected to pay £300 to complain about these things. With no guarantee of a response as well… Thanks HO.

You ask why your University degree is not proof. Have you heard of distance learning? How does the HO know you attended class in the UK for those years unless you explicitly provide the evidence?

It’s an interesting line of thinking. All those documents that you sent to prove your self-employment… How do they prove that you personally weren’t actually working from a laptop on a beach in Hawaii for most of the year?

Anyway, next time I’ll obtain the PR document first, and I’ll use the NCS.

Thanks all

[noajthan]

You are making things over difficult for yourself.
You clearly did not prove you were exercising treaty rights and thus were free from immigration time restrictions so you left the caseworker with no option but refusal.

£50 or so invested at NCS could have saved you all this grief and pain.

All requirements are well-known and in the public domain.
The bizarre need for an optional confirmatory EU-related document (DCPR) being made a mandatory prerequisite for the privilege of citizenship came in at end of last year.
Yes it was rolled out by HO will a typical lack of joined up thinking yet the previous need for PR status for those lucky enough to be on the less rigorous and less financially stringent EU migration route was always clear.

You should have used PR documentation as your guide:
https://www.gov.uk/government/publicati ... orm-eea-pr

and, for evidence of treaty rights, see:
https://www.gov.uk/government/uploads/s ... _clean.pdf

Proof of residency in UK is required as well as proof of exercising treaty rights.

You will note that as well identity, your residency in UK, absences from UK within limits (as per the two different EU & citizenship rules) and rock-solid evidence of exercise of treaty rights all have to be proven (as well as meeting the other requirements for naturalisation).

Note If a student, just a degree/transcript is completely inadequate; if there is no evidence of CSI (or alternative) being held then your PR clock will have stopped at that time.

Note: If an A8 national and worker then evidence of full/proper WRS registration will be required for the initial 12 months of work (if before early 2011).

[rotor]

It’s an interesting line of thinking. All those documents that you sent to prove your self-employment… How do they prove that you personally weren’t actually working from a laptop on a beach in Hawaii for most of the year?

That's a really good point -- I never thought of it; the "I am a good person" syndrome strikes again. I'm guessing it's far less common for people to work remotely vs owning UK property and living overseas or distance learning?

I've been filling in the citizenship form for my wife (dated January 2016), and it seems to have been simplified a lot. But I'm 99.9% sure that in last year's version it was pretty clear that you had to prove you'd been exercising your treaty rights, and the guides gave long lists of what some of the "suggested" documentation was. Maybe the guide wasn't as extensive for students? Or maybe you missed reading the guides altogether?

The huge disadvantage of the new method is that there is no NCS for PR, so you have to send everything in a giant envelope, and say bye-bye to your passport for six months. I was lucky and I managed to get it without having to go through PR, but my wife wasn't so lucky. The envelope I sent her PR documentation in was over an inch thick.

I wish the Home Office would put all these applications online. This would simplify their own job SO MUCH, and would give a much cleaner chance of everyone getting things right the first time.

I'm sorry you've had such an expensive and annoying experience. Hopefully you will have better luck in your second attempt.

[noajthan]

Proof of residency in UK is required as well as proof of exercising treaty rights.

[rotor]

Proof of residency in UK is required as well as proof of exercising treaty rights.

The NCS lady that took my application "explained" to me that anyone could have bills in their name being delivered to a UK address, but that earning income and paying tax was the only true way of proving you genuinely lived in the UK.

[ohara]

The huge disadvantage of the new method is that there is no NCS for PR, so you have to send everything in a giant envelope, and say bye-bye to your passport for six months.

If you read all of the guidance it is actually a relatively simple application. Also, I was only without my passport for 4.5 weeks.

[noajthan]

Proof of residency in UK is required as well as proof of exercising treaty rights.

The NCS lady that took my application "explained" to me that anyone could have bills in their name being delivered to a UK address, but that earning income and paying tax was the only true way of proving you genuinely lived in the UK.

NCS clerks/officials are not lawyers and may or may not be OISC qualified.

Its up to the applicant to submit appropriate unimpeachable proof of their status, in terms of treaty rights and residence (as well as identity & etc) or their application will fail.

There are 4 other categories of qualified person and 3 of those don't involve 'work' or paying tax. So tax documents are not the whole story.

[rotor]

If you read all of the guidance it is actually a relatively simple application. Also, I was only without my passport for 4.5 weeks.

Not for the non EEA partner it isn't! Almost six full months to the day. Also the amount of evidence required for self employed is vast and not clearly defined.

[ohara]

NCS clerks/officials are not lawyers and may or may not be OISC qualified.

NCS officials are trained to OISC level 1

[noajthan]

NCS clerks/officials are not lawyers and may or may not be OISC qualified.

NCS officials are trained to OISC level 1

I rest my case.

[noajthan]

Stop press: there does now appear to have been a step-change in HO policy - DCPR is no longer mandatory when applying to naturalise:
http://www.immigrationboards.com/eea-ro ... l#p1377475

This change may help when formulating a case for an appeal.

[kostasvl]

Thanks noajthan!