Citizenship for a Romanian Person

[londonlady]

Hi All,

I came to UK on aupair visa in March 2005, and in Jan 2007 I applied for a residency card as Romania got into EEA. Since then I am excercising my EEA treaty rights.

I want to apply for Citizenship now and confused about which route to take:

1) I am legally in UK since March 2005, so it makes it (Marchs of 2006, 2007, 2008, 2009, 2010) upto 5 years and 7 months. So should I go for ILR route? the BIA site says that EEA excercising ppl dont need that.

2) Since Jan 2007, I have now completed total 5 yrs (i,e Jan 2008, 2009, 2010, 2011 and now 2012). So I should now already have permanent residence automatically in which case I will be eligible to apply only in January 2013?

3) My fiance is British and if we get married now, can I immediately apply for Citizenship? the BIA website says there is a 3 yr minimum period to be spent in UK. However its not clear whether its post marriage or can even pre marriage count?

I think point 2 and 3 are viable options, and if point 3 requires post marriage period, then I will wait for point 2 to become valid until 2013.

Also, if any immigration solicitor reading this, can you pls send me a PM as I am quite happy to consult professionals in this regard. Also if you want to recommend someone who has experience of dealing with EEA routes and associated marriage cases.

Regards,

[Azhaar]

If i am wrong please correct me,

but under EU Rule you are entitled for Permenant stay in 2012 which this year.. so now u need to show 5 years residence and 5 years treaty rights.


thank you

[Jambo]

Best is option 2. If you are married to a British citizen, you don't need to wait 1 year after PR so it's January 2013 or the next day after your marriage if earlier.

Application for naturalisation is simple. I would save the cost of immigration lawyer if your case is as straight forward as you presented it.

[Obie]

With or without the husband, OP qualifies for Naturalisation as she has been exercising treaty rights before Romania entered the EU, and continued till date.
She qualified since 2010 for PR. Therefore since 2011 she could have qualified for naturalisation.

All of this is of course subject to her passing her Life in the UK test.

The marriage or not will have no effect on her qualification.

[John]

I cannot see how it is possible to exercise Treaty Rights before the person's country entered the EU. Accordingly I think Treaty Rights started to be exercised on 01.01.07 when Romania joined the EU.

So without the marriage to a British Citizen it is necessary to wait until 01.01.13 before submitting a Naturalisation application. But if the marriage happens before that date, the application can be made any time after the marriage.

londonlady, for the record, how have you been exercising Treaty Rights in the UK for the last five years?

[Obie]

I cannot see how it is possible to exercise Treaty Rights before the person's country entered the EU.

I dont think that statement is legally correct in light of the recent CJEU Judgement.

The CJEU has issued their judgement in the case of Ziolkowski

Essentially, someone from accession state who has been residing in the UK prior to their country joining the EU can claim PR, provided they meet the condition under EU rules, in the period they resided in the memberstate under national law.

This case could have an implication for Romania and Bulgarian national. There is a possibility it may affect non-EU national, even though not explicitly states, who had resided under national law as a worker, self employed, student or self-sufficient person prior to acquiring right under the EEA regulations.

[LeelooD]

I cannot see how it is possible to exercise Treaty Rights before the person's country entered the EU.

I dont think that statement is legally correct in light of the recent CJEU Judgement.

So you are saying that she can apply NOW directly for BC?

My understanding is that she could've applied in March 2010 for ILR and then in March 2011 for BC without any problems...

Anyway now she has PR automatically but still she has to wait in order to apply for BC.

[Obie]

I am assuming for ILR, you meant PR under community law. In that case, yes you correct.

The CJEU as i mentioned earlier has ruled that lawful residence accrued before a Union Citizen's state joined the EU counts towards PR.

If OP was lawfully resident in UK and working since 2005 and continued after her country joined the EU in 2007, then she became a PResidence in March 2010. Therefore she qualified to apply for naturalisation since March 2011.

She does not have to wait, as she has been an holder of PR for over a year, and furthermore, she is married to a British National. Not that i think the later is necessary in my view.

[LeelooD]

I am assuming for ILR, you meant PR under community law. In that case, yes you correct.

The CJEU as i mentioned earlier has ruled that lawful residence accrued before a Union Citizen's state joined the EU counts towards PR.

If OP was lawfully resident in UK and working since 2005 and continued after her country joined the EU in 2007, then she became a PResidence in March 2010. Therefore she qualified to apply for naturalisation since March 2011.

She does not have to wait, as she has been an holder of PR for over a year, and furthermore, she is married to a British National. Not that i think the later is necessary in my view.

Yes, but Home Office still says that you cannot go for 2 routes so for such applications this paper need to be added although knowing how HO operates I still think is too late

I'm saying this because I'm pretty sure that in this scenario the application will go for 6 months and then refused ==> appeal and maybe SOLVIT involved, another couple of months...there you go almost 2013.

[Nimitta]

Yes, but Home Office still says that you cannot go for 2 routes so for such applications this paper need to be added although knowing how HO operates I still think is too late

I'm saying this because I'm pretty sure that in this scenario the application will go for 6 months and then refused ==> appeal and maybe SOLVIT involved, another couple of months...there you go almost 2013.

She does not have to use 2 routes. No one suggested anything of the sort.

Anyway now she has PR automatically but still she has to wait in order to apply for BC.

She had obtained the status of the Permanent Resident in March 2010. Not "now", but 2 years ago. And she had lived in the status of Permanent Resident for 2 years (instead of required 12 months).

[LeelooD]

Yes, but Home Office still says that you cannot go for 2 routes so for such applications this paper need to be added although knowing how HO operates I still think is too late

I'm saying this because I'm pretty sure that in this scenario the application will go for 6 months and then refused ==> appeal and maybe SOLVIT involved, another couple of months...there you go almost 2013.

She does not have to use 2 routes. No one suggested anything of the sort.

Anyway now she has PR automatically but still she has to wait in order to apply for BC.

She had obtained the status of the Permanent Resident in March 2010. Not "now", but 2 years ago. And she had lived in the status of Permanent Resident for 2 years (instead of required 12 months).

Nimitta,

I didn't said that she has to choose from these 2 routes, I was just saying that if you call Home Office today it will tell you that you cannot use 2 routes; I've got my cousin in the same situation and she called 4 times at Home Office in Sheffield ( A2 phone line) and got this answer; I know that HO doesn't give you good answers for this (yet) but I just pointed this out...

For PR I meant to say that now she has PR no matter of situation or how HO takes in consideration, and yes she has PR since March 2010.

I'm just curious if there is somebody from A2 nationals who obtained BC this way...

[JoS]

Hi All,

I came to UK on aupair visa in March 2005, and in Jan 2007 I applied for a residency card as Romania got into EEA. Since then I am excercising my EEA treaty rights.

I want to apply for Citizenship now and confused about which route to take:

1) I am legally in UK since March 2005, so it makes it (Marchs of 2006, 2007, 2008, 2009, 2010) upto 5 years and 7 months. So should I go for ILR route? the BIA site says that EEA excercising ppl dont need that.

2) Since Jan 2007, I have now completed total 5 yrs (i,e Jan 2008, 2009, 2010, 2011 and now 2012). So I should now already have permanent residence automatically in which case I will be eligible to apply only in January 2013?

3) My fiance is British and if we get married now, can I immediately apply for Citizenship? the BIA website says there is a 3 yr minimum period to be spent in UK. However its not clear whether its post marriage or can even pre marriage count?

I think point 2 and 3 are viable options, and if point 3 requires post marriage period, then I will wait for point 2 to become valid until 2013.

Also, if any immigration solicitor reading this, can you pls send me a PM as I am quite happy to consult professionals in this regard. Also if you want to recommend someone who has experience of dealing with EEA routes and associated marriage cases.

Regards,

There is some confusion in the answers given to you already.
Your au-pair status before 2007 does not count as Treaty Rights.
You are entitled to consider yourself settled and, if you wish to make an application to confirm this status, 5 years after continuous residence in the UK exercising Treaty rights as a self-employed, worker, student, etc.
According to your info, you are already qualified for permanent residence.

Your marriage to a British citizen does not give you more rights apart from the right to work with Blue registration certificate, which I assume you either have already or never needed because you have been self-employed or a student.
You can not apply for British Citizenship now, but have to be settled for at least a year, that is, you will be able to do so in 2013.
3 years of marriage is applicable under the UK Immigraiton Rules where the spouse is granted a specific visa valid for 2 years, after which s/he can apply for indefinite leave to remain and after further year can apply for naturalisation. Clearly, this is not your case.

I would advise you to apply for a permanent residency now in order to help your application for British citizenship next year , because for one: there is a non-refundable fee for naturalisaiton and you would not wish to have the application refused then on the basis of some problems say 2-3 years ago (while if it is refused now, you do not lose anything as there is no fee for an application for permanent residence), and secondly: when you have permanent residence, you will only have to provide documents for one year rather than 6 years, next year.
I hope the above makes sense to you, but if not, do no hesitate to request further clarificaiton.

[JoS]

I'm just curious if there is somebody from A2 nationals who obtained BC this way...

No one has obtained BC from the A2 yet in this way, as the earliest they can apply will be Jan 2013.

[John]

JoS, have you read the Ziolkowski Judgement?

I totally admit that I was not aware of that until Obie posted a link above. Clearly that case is very relevant here.

[LeelooD]

JoS, have you read the Ziolkowski Judgement?

I totally admit that I was not aware of that until Obie posted a link above. Clearly that case is very relevant here.

Clearly that JoS didn't read the whole topic...; as I mentioned before, HO will say that for A2 nationals only in 2013 is possible to obtain BC, BUT Ziolkowski case prove them wrong!

The situation is almost the same as in 2007 when HO said that an Au Pair from A2 cannot obtain a Blue Card; one case prove them wrong...then many A2 nationals (working as Au Pair)obtained one...

[JoS]

JoS, have you read the Ziolkowski Judgement?

I totally admit that I was not aware of that until Obie posted a link above. Clearly that case is very relevant here.

This judgment may change the way UKBA considers applications,but it'll take time before it does so, and the delay will effectively negate the whole potential benefit.
Furthermore,the section of the judgment that is of relevance here is conditional on provisions in the accession agreement,something I need to look into first.

[Obie]

It is not a question of whether the judgement may change UKBA's approach, it Will change UKBA's approach.

Furthermore EEA national don't need to apply for PR, they automatically qualifies once they meet the conditions.

The judgement has nothing to do with transitional arrangement. It simply states that any national who has been residing lawfully as worker, Student, Self Sufficient or Self Employed, in a memberstate prior to their state of origin joining the EU, will have accrued rights which counts toward the 5 years required for PR.

The OP, has lived in the UK for over 5 years, as a worker, she continued to do so up to and after Romania joined the EU. She therefore secured PR in 2010, and in 2011 can make an application for British Naturalisation.
Plain and simple.

Furthermore, there is nothing in the Treaty of Accession that precludes this.

[JoS]

Obie, no need to become agitated. We are only discussing, not fighting.

‘May’ , ‘might’, ‘will’, should’ etc is semantics. UKBA may, might, etc decide otherwise and those who are aggrieved will find that challenging its approach and decisions will be pointless. By the time their appeals are heard and implemented, they would qualify under the rules as they are at present, so no need to expend on solicitors’ fees and place high expectations on pointless legal battles.

You are talking what should happen ideally, but I view it from the angle of a practitioner, who has seen, for example, Immigration Judges stating that UK is not party to particular provisions of the ECHR and does not need to comply with its provisions! If a judge like this rules on your case, you will certainly win it on further appeal, but it would be unfortunate that this would cause more delays and money expense.

It is not that plain and simple in real life, as you present it. I would not advice someone to go ahead with the application for naturalisation now and spend hundreds of £££, only to find it refused with the ensuing loss of money. Much more prudent is to wait till 2013 and only if she wishes now, to apply for confirmation of her right to permanent residence.

Importantly, read the judgment itself:
Para 57..
…the Court has had occasion to hold that where the Act concerning the conditions of accession of a Member State contains no transitional provisions concerning the application of those articles, they must be considered to be immediately applicable and binding as regards that Member State as from the date of its accession..

59. In the present case, there is no transitional provision concerning the application to the Republic of Poland of the European Union…

On those grounds, the Court (Grand Chamber) hereby rules:
1. ….
2. Periods of residence completed by a national of a non﷓Member State in the territory of a Member State before the accession of the non﷓Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.

[Obie]

Me agitated? about what? fighting? seems a bit extreme. I will not dignify those remarks with an answer. I was merely stating the position of the law, which you were reluctant to accept initial, despite the authority.

I understand some judges will not like the ruling or will be reluctant to apply them, that is not the issue here. I also believe a lot of judges or even the Secretary of state will accept and have no problem applying the rules.

You have provided no evidence so far to prove that, UKBA are resisting the application of the Judgement.

There are many judgements like Baumbast and Eind which are not reflecting in UKBA's policy, does not mean they are not applying them.

Also, as stated before, there is nothing in the Accession Treaty that precludes the rules from applying to A2 national on the day of accession. We are not talking about people subjected to transitional restriction here, but people who aren't.

I really dont have any desire to get into a fight with a Legal Practioner, as i suspect you will have more practical experience than i do.

[JoS]

There is an easy risk free way to find out, in the absence of an actual precedent in view of the recency of the mentioned judgment.

LondonLady can apply for PR now and include in the cover letter that she would like clarification if she has already settled in 2010 based on the specific judgment. If they say 'yes' then she can use their letter to apply for BC straight away.
Of course, UKBA may simply ignore her question.

[Shef]

JoS, I think the earliest an A2 national can apply for PR is actually January 2012 even if their situation is different from the OP. Bulgaria and Romania joined the EU in January 2007.

[JoS]

Shef, it's good to read the whole discussion first.

[Shef]

I'm just curious if there is somebody from A2 nationals who obtained BC this way...

No one has obtained BC from the A2 yet in this way, as the earliest they can apply will be Jan 2013.[/quote

JoS, just responding to your post above!

[John]

Shef, have you read the whole of this topic? If you have, have you understood the implications of the case being referred to?

[Shef]

Hi John,
I did read all the post and understood the OP's situation is different but I'm just trying to clarify JoS quote about A2 national not eligible for PR until January 2013...maybe I missed out "...yet in this way..." part of JoS statement.

No offence intended, just want to be sure A2 national are eligible for PR this year as my wifey would be applying by May!