is my wife eligible to apply for British Nationality

[Elsaify]

Hia,

I am non EU citizen and I lived in the UK for about 7 years now, 5 years studying (student visa) and 2 years working (work permit)

I got married in the UK (UK marriage certificate) to Austrian citizen 6 month ago.

My wife is currently University student and she came to the UK about or more than 10 years ago, for all this time she had been living with her family in the UK as student. She have proves that she been living and studying in the UK for the last 10 years.

My wife or her Austrian family members never applied any UK permanent residence or nationality in the UK?


My questions are:

Is my wife now eligible to apply for British Nationality? Or how she will be eligible?

Dose my wife has to register or use any of the EEA forms before she apply for nationality?

I am going to apply for residence card using EEA2, do you think my application will be successful even that my wife did not apply for any type of residence in the UK and she have been living here with her family under the default EU rights??

If I get the residence card for my self and after that my wife got the British nationality can I apply for permanent residence or the British nationality?

[Marco 72]

If your wife can prove that she has been living in the UK for the last five years - studying, working, or being supported by relatives - then she already has Indefinite Leave to Remain. Two immigration routes are open to you: you can either apply for an EEA Family Permit or for a spouse visa as the husband of an ILR holder. Each one has its own advantages and disadvantages.

EEA FP is granted quickly and more or less automatically, you can work and have access to public funds, etc. If your marriage falls apart or your wife dies, it's unlikely that you will be thrown out. The only disadvantage is that it will take you 5 years to get ILR. After that you can either apply for British citizenship immediately or a year later, according to whether your wife is a UK citizen or not at that stage.

To get a spouse visa you and your wife will have to be interviewed by the Home Office and provide evidence that your marriage is genuine. The whole process may take a while and it won't be free. If something happens to your wife or to your marriage it's very likely the Home Office will try to kick you out. And for the first two years you will have no access to public funds. The only advantage I can see is that two years later you can apply for ILR, and afterwards, if your wife is a UK citizen, for citizenship as well without delay.

Your wife can apply for British citizenship if she satisfies the residence requirement. She doesn't need to apply for ILR first. She will have to show that she has been resident in the UK for the past six years. She should get letters from schools, universities, employers, etc confirming she has studied/worked with them. Once she has filled in her application she can make an appointment at a Nationality Checking Service. You can find information about that here.

By the way, she will probably lose her Austrian citizenship after naturalisation, at least if the Austrian government finds out, unless she gets a permit from the Austrian authorities (Bewilligung der Beibehaltung der österreichischen Staatsbürgerschaft). This can be granted by a state government (Landesregierung), not the Austrian federal government. See here or here. It's interesting that in Vienna the application costs less than 100 euros, but in Salzburg it can cost up to 1000 euros...

[John]

She doesn't need to apply for ILR first. She will have to show that she has been resident in the UK for the past six years.

Marco I don't think that is quite right. It is not a question of her proving she has been in the UK exercising her Treaty Rights for 6 years. Instead it is a question of showing that Permanent Residence has been held for at least 1 year, and she has been resident in the UK for at least 5 years ... which is slightly different.

Elsaify, has your wife got a Permanent Residence sticker in her passport? If not then under the terms of new EU regulations that came into force on 30.04.06, she automatically got that status on that date, given she had already been exercising EU Treaty Rights for at least 5 years at that point.

It thus follows that no application for Naturalisation can be made before 30.04.07, when Permanent Residence will have been held for 1 year. Of course the application for Naturalisation can only be made if a pass certificate from the Citizenship Test can be enclosed with the Naturalisation application. So Elsaify, has your wife already started studying for that test? Or passed it?

[Marco 72]

Marco I don't think that is quite right. It is not a question of her proving she has been in the UK exercising her Treaty Rights for 6 years. Instead it is a question of showing that Permanent Residence has been held for at least 1 year, and she has been resident in the UK for at least 5 years ... which is slightly different.

Hi John, what you write makes perfect sense. However, when I went to hand in my application at Camden NCS a few days ago they had a printout on the wall, with the length of time for which applicants were required to provide proof of residence. For EEA nationals with an ILR stamp this was given as five years. For those without the stamp it was six years. Of course I could be wrong, but I don't remember seeing a note saying that this applied only after 30 April 2007. Is it possible that the new ILR rules are being applied retroactively?

[JAJ]

Hi John, what you write makes perfect sense. However, when I went to hand in my application at Camden NCS a few days ago they had a printout on the wall, with the length of time for which applicants were required to provide proof of residence. For EEA nationals with an ILR stamp this was given as five years. For those without the stamp it was six years. Of course I could be wrong, but I don't remember seeing a note saying that this applied only after 30 April 2007. Is it possible that the new ILR rules are being applied retroactively?

Prior to 30 April 2006, EEA nationals (other than Irish citizens - but the NCS may not know that exception) had to make a formal application for Indefinite Leave to Remain.

Those EEA nationals who did not do so, only acquired Permanent Residence on 30 April 2006, no matter how long they had lived in the UK before then.

And the British Nationality Act has a clear requirement that those applicants for naturalisation who are not married to a British citizen must hold permanent residence for at least 1 year.

So EEA/Swiss citizens who got automatic Permanent Residence on 30 April 2006 must generally wait until May 2007 to go for naturalisation, unless married to a British citizen.

There is some scope for the IND to waive this requirement, but no clarity on whether or not they are actually doing so in these cases.

[JAJ]

By the way, she will probably lose her Austrian citizenship after naturalisation, at least if the Austrian government finds out,

As far as I understand it, if she does not obtain the correct permission, she automatically loses Austrian citizenship, even if the Austrians don't find out about it. It would mean her Austrian passport was no longer a valid travel document.

[Elsaify]

Hi,

Thanks for you replies, that was really helpful

To answer your questions:

No, my wife don’t have Permanent Residence sticker in her passport sticker on her passport

Yes, she have been studying in the UK for the last 10 years with the support of her family and EU education grants

I understand now that my wife already have ILR as she been in the UK exercising her Treaty Rights for the last 10 years

My wife did not apply for Citizenship Test yet, can she apply now or we have to wait till 30.04.07???? she can of course start studying for that test now !!!

I understand now that on May 2007 she will have the right to apply for citizenship as she have completed 12 month of residency since 30 April 2006 new Act. Dose she still need to apply for permanent residency stamp using EEA3 form, and if she do, dose she have to wait for another 12 month after she got the residency stamp to apply for citizenship or this is only apply for ILR stamp???

Is obtaining the permission from Austrian authorities to keep her Austrian citizen difficult, or is it straight forward process that can be obtained easily


*****


Now For myself, I sent my application for the 5 years non-EU residence card as it is easier and faster.

After I got it I will apply for ILR during these 5 years as spouse to ILR or UK citizen holder or becoming 5 years residence card holder will prevent me from applying during this period for ILR????


Thanks again for your help,

A Elsaify

[JAJ]

My wife did not apply for Citizenship Test yet, can she apply now or we have to wait till 30.04.07???? she can of course start studying for that test now !!!

She can take the test anytime: http://www.lifeintheuktest.gov.uk

I understand now that on May 2007 she will have the right to apply for citizenship as she have completed 12 month of residency since 30 April 2006 new Act. Dose she still need to apply for permanent residency stamp using EEA3 form

No. But if she is planning to apply for citizenship much later than May 2007 (eg if she wants to wait for permission from the Austrians), then she ought to document her status now.

Is obtaining the permission from Austrian authorities to keep her Austrian citizen difficult, or is it straight forward process that can be obtained easily

No-one on this forum is likely to know. Maybe find some Austrian expatriate groups who would be likely to know more.

If the Austrians say no then she has to make a choice about what she wants to be - British or Austrian. And they may not be quick to make a decision either.

Now For myself, I sent my application for the 5 years non-EU residence card as it is easier and faster.

After I got it I will apply for ILR during these 5 years as spouse to ILR or UK citizen holder or becoming 5 years residence card holder will prevent me from applying during this period for ILR????

You will get Permanent Residence after 5 years on your EEA permit.

If you already have 7 years residence in the UK then you might be eligible to apply for ILR after you've completed 10 years legal residence in the UK. However it's not clear if the Home Office would count time on EEA status for this (they should, but whether they will or not is another question).

[Marco 72]

Is obtaining the permission from Austrian authorities to keep her Austrian citizen difficult, or is it straight forward process that can be obtained easily

According to the websites, one needs to have good character (no criminal record) and show a special reason why it is in their interest, or in their family's interest, to keep Austrian citizenship. At least this is the case for someone who has Austrian citizenship by descent. It's not clear how easy it is to obtain it, or even where one needs to apply - presumably to the government of the "Land" where they or their family last used to reside.

[Elsaify]

Thanks for your reply,

I still need an answer for this question:

If I become 5 years EU residence card holder (using form EEA2) will this prevent me from changing status during this 5 years and apply for ILR or become UK permanent resident under UK immigration rules (like completing 5 years work with permit or completing 10 years residency or spouse of British citizen)

[tensailee]

in short - yes, it will.

[JAJ]

in short - yes, it will.

Regarding the 10 year legal stay rule : are you sure?

[Elsaify]

any one have definite answer to this ??