EEA Naturalisation rejected

[airbender]

Hi Everyone,

It looks like people are a lot more knowledgeable than my solicitor about the laws and interpretation. I had to do all the donkey work myself to understand some of the basics.

Here is the thing, since I am a british citizen and my wife completed her 5 years, we applied for the British Citizenship directly assuming that she already has PR because of completing 5 years (automatically) and it was refused. Situation we have is this:

* May 2007 - My spouse is Romanian citizen and she applied and got a blue registration card (exempt registration card I believe) in Prior to that she was working as an au-pair.

* May 2007 to August 2007 - She worked as an au-pair for the same family.

* August 2007 to September 2009 - She was seeking jobs and had registered with recruiters and was applying for jobs. Also, she had undertaken degree courses with a university on PART-TIME basis to improve her chances of getting a job (which worked as she did finally secure a job - see below)

* September 2009 to Present - She has been working full time, changed employers in 2010 but still in employment.


Now HO is saying that her period between August 2007 and 2009 when she was enrolled Part-time for studies to improve her chances of getting a job, she was a student and should have had comprehensive medical insurance. Because she didnt, they rejected her.

Are there any legal cases where such stupid retrospective interpretation of expecting CSI is overturned?

Secondly in my view, their treatment of her as student is wrong, although such a long period as job seeker seems odd, but good thing is that she didnt seek jobseeker allowance so was not a burden on state finances. She also had loads of emails about rejections, interviews, cv under consideration, etc to prove she was seeking job.

Additionally, in reconsideration request to HO I intend to refer to following:


Citizens Directive (2004/38/EC) Article 7 (3) (d) outlines the requirements to maintain “worker” status/rights even when not in employment, stating: “he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.”

Since my wife was involuntary unemployed after Lorna. She embarked on the training to improve her job prospects. She also has emails from agencies, recruiters, etc. to prove that she was actively seeking job while also not being a burden on the public funds and services.



Further, in another case <<<<< IP and others (A2 national – worker authorisation – exemptions) Bulgaria [2009] UKAIT 00042 at http://www.bailii.org/uk/cases/UKIAT/2009/00042.html >>> in which the appeal was successful and “worker” status was confirmed for registration purposes it states that:

Third, even assuming he had remained unemployed since October 2008 until the date of hearing before the IJ, he has now, since 3 September 2009, recommenced employment. Whilst it is implicit in what the ECJ say in Vatsouras that employment for only a short period may not suffice to make someone a worker within the meaning of Article 39, the first appellant's very recent employment has to be considered in the context of his previous real links with the labour market together with his plain intention (evinced through his claim for Jobseekers Allowance) to return to the labour market.

Given the above consideration of long unemployment, if you compare my wife's situation, then the extra / better bits for our case is that my wife even was doing training/education to improve job prospects, was also not the burden on state finances (unlike the case above) and also is employed since September 2009, clearly showing her real links with the labour market together with the intention to get into labour market (which has been considered by the Judge).


Lastly, even if they consider her period between August 2007 and September 2009 to be of STUDENT, then she should fall under the transitional arrangement laid out in ANNEX B of Chapter 6 on Permanent Residence: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


What you guys think?

Any suggestions/comments. I know I shouldve applied EEA3 first, but what can you do when your solicitor suggests all is well and then when the rejection comes, says that I am very sorry to inform you ETC...

[Jambo]

The transitional arrangements can't be used in her case unless her blue card was issued as a student so the CSI requirement won't be waived.

You have two options:

- Sorting out CSI - Any change you had some soft of private medical cover for the family, maybe from your workplace? If not, any chance she can get EHIC from Romania or a letter from the Romanian Health authorities confirming she was covered during that period.

- Going via the job seeker route as you described.

You say she worked as au pair before 2007? When did she move to the UK?

[EUsmileWEallsmile]

When did you get married?

[airbender]

When did you get married?

We got married in March 2012 and she came to UK in September 2005.

We were not married so she was not covered under my insurance, plus iv changed jobs, etc.

Any precedent or examples of what kind of letter from Romania would have worked?

Thanks

[Jambo]

Any precedent or examples of what kind of letter from Romania would have worked?

I don't have any experience but I would hope that a letter from Romania stating she was covered by the Romanian Health services during that period would act similar to EHIC and would be accepted. The CSI requirement is vague and the HO can't ask for a specific cover to meet the requirement so hopefully that would do the job.

[airbender]

Any precedent or examples of what kind of letter from Romania would have worked?

I don't have any experience but I would hope that a letter from Romania stating she was covered by the Romanian Health services during that period would act similar to EHIC and would be accepted. The CSI requirement is vague and the HO can't ask for a specific cover to meet the requirement so hopefully that would do the job.

Thanks for your help. We really need to be specific, what exact letter can we get from Romania (from something similar to GP?)


also, I am just thinking if HO is not enforcing the change of registration certificate when someone *MAY* have moved categories, then how can they expect someone to comply with insurance requirement in the PAST?

Shouldn't they enforce it via Unis at the time of admission? This whole requirement seems very facing stupid. Sorry for my french!!

[EUsmileWEallsmile]

The UK does not force EU nationals to comply with the directive, but if they try and avail of its benefits later on, they expect people to have complied.

This can catch people out many years later when they realise that they missed some aspect of it.

[Jambo]

Thanks for your help. We really need to be specific, what exact letter can we get from Romania (from something similar to GP?)

As what I'm suggesting is basically backdating EHIC, I would assume it should come form the same authority that provides EHIC or some type of a health services authority (ministry of health?). Not a GP.

also, I am just thinking if HO is not enforcing the change of registration certificate when someone *MAY* have moved categories, then how can they expect someone to comply with insurance requirement in the PAST?

Shouldn't they enforce it via Unis at the time of admission? This whole requirement seems very facing stupid. Sorry for my french!!

The European Commission are in dispute with the UK over the CSI mainly because they see the NHS to be enough to be regarded as CSI which is required by the directive.

There is no point of enforcing it at uni because there is no requirement for EEA nationals to have CSI. It is only required if they want to benefit from the regulations in order for their residence time in the UK to be recognised for Permanent Residence.

[sum1]

There is no point of enforcing it at uni because there is no requirement for EEA nationals to have CSI. It is only required if they want to benefit from the regulations in order for their residence time in the UK to be recognised for Permanent Residence.

I suppose what you mean is that for the uni it is sufficient to check if the student is really an EEA national but it is no their task to check the full residence requirements. In the definition of the EEA regulations a "student" must also hold CSI. Otherwise that person would not be a qualified person.

[EUsmileWEallsmile]

There is no point of enforcing it at uni because there is no requirement for EEA nationals to have CSI. It is only required if they want to benefit from the regulations in order for their residence time in the UK to be recognised for Permanent Residence.

I suppose what you mean is that for the uni it is sufficient to check if the student is really an EEA national but it is no their task to check the full residence requirements. In the definition of the EEA regulations a "student" must also hold CSI. Otherwise that person would not be a qualified person.

I think what Jambo means is that it does not matter to many EU national students until they decide that the want to benefit from the regs; often to bring a third country family member into the UK, then the rules are enforced to the letter.

[Obie]

I believe if she hold an EU medical insurance issued by Romania, then she should be fine. It is not strictly speaking correct that she has to hold CSI.

[airbender]

There is no point of enforcing it at uni because there is no requirement for EEA nationals to have CSI. It is only required if they want to benefit from the regulations in order for their residence time in the UK to be recognised for Permanent Residence.

I suppose what you mean is that for the uni it is sufficient to check if the student is really an EEA national but it is no their task to check the full residence requirements. In the definition of the EEA regulations a "student" must also hold CSI. Otherwise that person would not be a qualified person.

I think what Jambo means is that it does not matter to many EU national students until they decide that the want to benefit from the regs; often to bring a third country family member into the UK, then the rules are enforced to the letter.

There is no third country family member angle involved. She just wants to apply for permanent residence and then nationality based on marriage with me (a BC).

[airbender]

I believe if she hold an EU medical insurance issued by Romania, then she should be fine. It is not strictly speaking correct that she has to hold CSI.

She never had any medical insurance in Romania either. We checked Romania's medical insurance angle, but cant find too much detail on that either.

[airbender]

Reading all replies, it seems that "Worker" may be the only way to go with.

In that case, if the Worker status has been almost 2 years, what kind of evidence should we show other than that job applications, interviews were made (so rejection emails, interview invitations, etc). Also have some voluntary work experience to show that she was trying to improve her job prospects by gaining experience.

The note about EU challenging UK for not considering NHS is interesting. Do we know when are we going to get any outcome on that?

My understanding is that Romanian/Bulgarian citizen need some sort of authorisation/registration certificate for over 3 months period to be legally in the UK so if she was here legally then in some shape or form her status should have been changed to student (if it applies) and then accordingly she wouldve taken the insurance. This left-field wrong application of law retrospectively in the past seems very stupid (to say the least, almost borderline discriminatory and an excuse not to give people permanent residences / citizenship).

[EUsmileWEallsmile]

The note about EU challenging UK for not considering NHS is interesting. Do we know when are we going to get any outcome on that?

See here

http://www.immigrationboards.com/viewtopic.php?t=101428

[AndreeaS]

I would suggest you go for the PR certificate first (EEA3) - application is free and once granted, you don't risk losing the application fee for naturalisation and you have a much stronger case anyway.

In chapter 6 Annex B of the PR workcase guidance you will find CSI - transitional arrangements for students: “an application for permanent residence as a student will not be refused solely on the grounds that there is no evidence of comprehensive sickness insurance on the date of decision where: UKBA issued a registration certificate to the applicant on the basis of their residence in the UK as a student before 20th June 2011” (google it).

I've been in a somehow similar situation (by the way my husband found this exemption, no lawyer was able to help!!!) and I just got my PR certificate.

[Jambo]

I would suggest you go for the PR certificate first (EEA3) - application is free and once granted, you don't risk losing the application fee for naturalisation and you have a much stronger case anyway.

In chapter 6 Annex B of the PR workcase guidance you will find CSI - transitional arrangements for students: “an application for permanent residence as a student will not be refused solely on the grounds that there is no evidence of comprehensive sickness insurance on the date of decision where: UKBA issued a registration certificate to the applicant on the basis of their residence in the UK as a student before 20th June 2011” (google it).

I've been in a somehow similar situation (by the way my husband found this exemption, no lawyer was able to help!!!) and I just got my PR certificate.

If you carefully read the first post, she already applied for BC (and got refused) and she didn't have a registration certificate as a student.

[Deeone]

My advice to you will be to printout email/letters of her previous job applications and employer response as well as any evidence of training she has undergoes in order for her to secure a job for those years she was out of job as well as any job interview response she has got. and write a Covering letter to back these up affirming that under the regulation he has fulfilled the regulations of seeking job.

[thsths]

The transitional arrangements can't be used in her case unless her blue card was issued as a student so the CSI requirement won't be waived.

According to the caseworker instructions that is true, but I would be surprised that it is actually funded in law. As discussed, the EU is disputing the whole concept of CSI in the UK as flawed, and I tend to agree. In any case they cannot expect her to comply with regulations that were imposed after the period under dispute - I think the CSI rule only came into force with the new government. The transitional arrangements are meant as a "fig leave", but they are obviously phrased to narrowly.

I would appeal and see what happens. The tribunal may have more sense than our politicians. You can also write to the European commission, they are interested in cases like yours.

[airbender]

btw there is no right to appeal. only reconsideration

[thsths]

btw there is no right to appeal. only reconsideration

If you application is refused, you always have a right of appeal.

[Jambo]

If you application is refused, you always have a right of appeal.

This was an application for naturalisation. There is no legal right of appeal under British nationality law (although the case can be re-examined if a decision is proved to have been flawed).

[EUsmileWEallsmile]

If you application is refused, you always have a right of appeal.

This was an application for naturalisation. There is no legal right of appeal under British nationality law (although the case can be re-examined if a decision is proved to have been flawed).

Thanks for clarifying that point, Jambo.

[Jambo]

According to the caseworker instructions that is true, but I would be surprised that it is actually funded in law. As discussed, the EU is disputing the whole concept of CSI in the UK as flawed, and I tend to agree.
In any case they cannot expect her to comply with regulations that were imposed after the period under dispute - I think the CSI rule only came into force with the new government. The transitional arrangements are meant as a "fig leave", but they are obviously phrased to narrowly.

Leaving the "what is CSI" dispute aside, the regulations since 2006 have always required CSI from students and this was part of the forms since 2008. The fact that it wasn't enforced before June 2011 doesn't make your stay legal if you didn't comply with the regulations. Police don't stop cars driving just a few miles over the limit. You are still breaking the law by doing so.
I don't think it has to do with the new government. This definitely doesn't help with their target of reducing immigration level. It just postpones EEA families becoming PR / BC.

[EUsmileWEallsmile]

According to the caseworker instructions that is true, but I would be surprised that it is actually funded in law. As discussed, the EU is disputing the whole concept of CSI in the UK as flawed, and I tend to agree.
In any case they cannot expect her to comply with regulations that were imposed after the period under dispute - I think the CSI rule only came into force with the new government. The transitional arrangements are meant as a "fig leave", but they are obviously phrased to narrowly.

Leaving the "what is CSI" dispute aside, the regulations since 2006 have always required CSI from students and this was part of the forms since 2008. The fact that it wasn't enforced before June 2011 doesn't make your stay legal if you didn't comply with the regulations. Police don't stop cars driving just a few miles over the limit. You are still breaking the law by doing so.
I don't think it has to do with the new government. This definitely doesn't help with their target of reducing immigration level. It just postpones EEA families becoming PR / BC.

Interesting thoughts. I agree that CSI is in the directive and the corresponding regulations, but...

Let's look at an example.

Person A: applies for a registration certificate as a student in 2007. No CSI, no problem. Here you go.

Person B: does not apply for a registration certificate as a student in 2007, also no problem, you don't have to.

Person A and B apply for PR in 2012. UKBA accept A, but not B. To me this isn't right.

Person C applies for a registration certificate July 2011. Sorry, you need CSI. While, I don't necessarily agree with the policy change, at least it is consistent and people would know where they stand.