PR requirements changed for A8 and A2 nationals : ECJ ruling

[Directive/2004/38/EC]

The ECJ, in cases C‑424/10 and C‑425/10 Ziolkowski et al vs. Berlin, has ruled that

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.

This means that if you are a citizen of an A8 (Poland, Slovenia, Slovakia, Hungary, Latvia, Lithuania, Estonia, Czech Republic) or A2 (Bulgaria, Romania) country and you are now and have been living in another member state (such as the UK) for more than 5 years, and during that whole time you have been working or studying or self-sufficient, then you (most likely) now have Permanent Residence.

Read the full decision at http://eur-lex.europa.eu/LexUriServ/Lex ... 24:EN:HTML Read it and enjoy!

If you apply for a PR Card from UKBA, make sure to include a cover letter that refers to the case and print out and include a copy of the case with your application.

Merry Christmas!

[Obie]

As stated previously, i am doubtful if this could have any effect on A8 national as most would have qualified under the EEA rules anyway, however i believe Romanian national who has lived as business people or Self Sufficient national prior to 2008 can claim PR, and cease to be subjected to transitional rules.

I fail to see this having a floodgate effect anyway, although it lives some question unanswered.

The courts were not concerned about lawful residence under national law, but more so what the person did during the period of residence.

If an A2 national was working illegally before their state became part of the EU, or was living a self-sufficient life, had medical insurance but no leave to remain under national rules, do they still qualify?

[Directive/2004/38/EC]

I agree that it will not be so important for A8 nationals. For A2 nationals (Bulgaria and Romania) it may be more important, as it will be for nationals of Croatia when it enters the EU in July 2013.

[scorpio1]

I agee with you too, I dont think latest ecj ruling is important for A8 now, reason is joined Cases C‑424/10 and C‑425/10 preliminary ruling under Article 267 was made in july 2010, curentlly A8 rules chnaged after april 2011, i am only referring in the UK.
Thanks

[Directive/2004/38/EC]

47 Consequently, a period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in Article 7(1) of Directive 2004/38 cannot be regarded as a ‘legal’ period of residence within the meaning of Article 16(1).

I do not know if this is an oversight on the person writing the opinion, or if this is an important change. Article 7(1) is about exercising treaty rights.

But what about the first three months of residence where the Eu citizen is not required to exercise treaty rights?

Article 6 - Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

This question was stimulated by reading a misleading statement in http://www.freemovement.org.uk/2011/12/ ... uro-cases/ :

Firstly, legal residence under national laws not in compliance with the requirements of the Directive does not contribute to the acquisition of the right of permanent residence. This might include residence as a visitor, for example.

[mcovet]

(My reply to Obie's original thread)
This is very interesting, although ridiculous and weird! Imagine a situation where a non-EEA national had studied in the UK for 4 years and then, having gotten married for 1 year, would acquire Permanent Residence? Sounds illogical and, compare this case to the one below from the UK, which makes much more sense.

http://www3.eurolii.org/uk/cases/UKIAT/2007/00073.html

GN (EEA Regulations: Five years Residence) Hungary [2007] UKAIT 00073

I feel that CJEU is way too liberal in this sense... but the bottom line is that 5 years of lawful residence, culminating in some form of EU element, would and should suffice for PR! Fair enough if this is applied universally and consistently and not through appeals and tribunal hearings.

Well done Obie for finding this case, I have several people who could benefit from this case (non-EEA nationals) and they could probably just quote it when UKBA refuse their early applications for PR.

I feel that this will benefit mostly the NON-EEA nationals on other routes before getting a family association with an EEA national. And also, as you said, those new EU member states (Bul and Ro) and other possible joiners.

Anyway, interesting to watch its development in practice.

[Obie]

We have to read this case with a bit of caution and not give it extended or broad interpretation.

The memberstates like UK will argue that it only applies to EU citizens who had worked or exercised treaty rights in other capacity before their country join the EU, and then become EU citizens.

However, how do you treat the non-EU family members of these people? do they qualify for PR or Residence Card.

The directive states there shall be no discrimination between the treatment of beneficiaries of the directive on grounds of nationality or anything else.

If working under national rules benefits former non-EU citizens who then become beneficiaries of the directive, should it not affect non-EU spouse who had worked it the UK for several years and then married to an EU citizens and after a period of time claim permanent residence.

I know there are difference between the two categories, but is such difference too much to deny them the right of permanent residence? We shall see in due course.

[cutty]

hi there to everybody,
i am eea citizen (A8 countries) and have been living in uk for past 5 years working fulltime . when i came to uk first time and started working i got my first wrs certificate however i changed my job after 5 months and started new job after 1 week but dint apply for wrs certificate until 9 months of working there than recently after i completed my 5th year in uk i applied for eea3 they sent back my application and told me becoz i dint apply for my 2nd wrs instantly they cannot process my eea3 application untill i complete my 5 year of working continuously under wrs.
so my question is becoz of this ruling am i allowed to apply now for eea3 without having to wait to complete 5 years after the 2nd wrs or do i still need to wait another year inorder to complete my 5 year from getting my 2nd wrs certificate. please clarify me thanks

[Nimitta]

If working under national rules benefits former non-EU citizens who then become beneficiaries of the directive, should it not affect non-EU spouse who had worked it the UK for several years and then married to an EU citizens and after a period of time claim permanent residence.

It should. Obie, what could be an argument against it?

Directive, thanks a lot for the link.

[Obie]

I cannot give an hypothetical answer to that question. It will depend on what the argument of the other party is.

Anti discrimination rules will certainly come into play in these circumstance. ]

Given the mindset of member of the British Judicary, i will say a possibly 50-50 chances of success.

[cutty]

hi any suggestion please regarding my problem... i thought my case is similar to the ongoing discussion hence added my problem dint meant to hijac or something . please respond to it thanks

[ozlem1976]

What about non-EU family members who were in the UK prior to becoming a family member of EEA national. Does that time spent in the UK as non-eu student count?

[naija99]

does a hungarian national need to register with the worker registration scheme?

[Directive/2004/38/EC]

does a hungarian national need to register with the worker registration scheme?

Check here, or you can look it up pretty easily

[astra_zeneca888]

Hi there

This is a follow-up question to Obie's earlier post regarding someone who had worked illegaly in the UK before the accession date.

Following recent ammendments to EEA regulations 2006, I intend to submit an EEA3 application claiming PR and would like to include the 4 years prior to the accession date (1st Jan 2007) when I was registed and authorised as a self-employed person under the ECAA.

My only concern is that during that time of self-employment I also worked part-time as an employee since my income from self-employment was insufficient to cover my expenses, and thus being in breach of the immigration rules for people in this category (self-employment).

In your opinion, will or can this affect my application for PR? My earnings from self-employment were very low, on the other hand I have all of my P60s for that period of time 2003- 2007...from unauthorised employment.

This is the only concern I have which prevents me from posting my application to UKBA.

Many thanks for your suggestions. I would appreciate some help.

AZ

[Directive/2004/38/EC]

Check https://dl.dropbox.com/u/27885818/UK/FO ... ession.pdf

[astra_zeneca888]

Thank you for the link, Directive, that is useful.

The info you provided mentions that an A2 national could only acquire permanent residence on or after 01/01/2007.

My question is: Can I pick any period of 5 years residency as long as I meet the requirements of Article 7 of the Directive? Or, this has to be 5 years to the date the application is made?

Thank you.

[Directive/2004/38/EC]

Thank you for the link, Directive, that is useful.

The info you provided mentions that an A2 national could only acquire permanent residence on or after 01/01/2007.

My question is: Can I pick any period of 5 years residency as long as I meet the requirements of Article 7 of the Directive? Or, this has to be 5 years to the date the application is made?

Thank you.

You can pick the 5 year period. But be very very clear in your cover letter. Say something like "Please be very clear to note that this application is for a card to document my permanent residence attained by my being resident in the UK from xxxxx to yyyyy in accord with the European regulations"

[astra_zeneca888]

Thank you for your suggestions, Directive.

It would be good to hear from someone who has applied for PR based on Ziolkowski et al.

[astra_zeneca888]

Hi there

I refer to my earlier query regarding residence in the UK prior to the accession date of 1st Jan 2007.

And I have a couple of questions to ask, I'm hoping that someone on here could help me out.

1. When making an application for PR and relying upon residence under domestic UK legislation, and include evidence of my being economically active before the accession date and therefore compliant with Art 7 of the Directive 2004, does or will UKBA question my leave to remain during that period which I intend to rely upon?

and

2. Do I need to include copies of my previous leave to remain (2003 - 2007) from my previous passports? or do you think this is not necessary as the UKBA will have sufficient info on my file?

I would welcome your comments/suggestions if any.

Thank you.

[Directive/2004/38/EC]

1. When making an application for PR and relying upon residence under domestic UK legislation, and include evidence of my being economically active before the accession date and therefore compliant with Art 7 of the Directive 2004, does or will UKBA question my leave to remain during that period which I intend to rely upon?

and

2. Do I need to include copies of my previous leave to remain (2003 - 2007) from my previous passports? or do you think this is not necessary as the UKBA will have sufficient info on my file?

I am not sure what you are asking in the first question. Were you illegally resident in the UK?

For question (2), you may find it is easier to include a photocopy than it is to even ask the question.

[astra_zeneca888]

My EEA3 application for PR has been refused.

Just to give an overview/background a bit more in details about my case:

In light of recent ruling in cases of Ziolkowski and Szeja (C424/10 and C425/10) and following recent amendments to the UK EEA regulations 2006, I have submitted an EEA3 application claiming Permanent Residence to include time spent in the UK prior to Romania's accession to the EU (that is time spent in the UK between 2003 - 2007) when I was registered and authorized to work as a self-employed person under the EC Association Agreement with Romania. I first applied in this category in March 2003 and in march 2004 I was issued with an extension on my stay in the UK as a self-employed person until Jan 2007. On the 1st Jan 2007 Romania has joined EU. In Feb 2007 I was issued with Yellow card as a self-employed person and again evidence was submitted in full. In Dec 2007 I was issued with a Blue card exempt from worker authorization requirements.

I have provided evidence to include Dec 2005 to Dec 2010. But they also asked about what I did since 2010? Please note that they did not ask me to provide further evidence, they simply refused my application without asking for further evidence. My understanding is that I should provide evidence to cover 5 years of continuous residence not 8 years or more!

In my opinion I have submitted enough evidence to cover for my time spent in employment and self-employment as I did not want to make the bundle too heavy and complicated as I have already supplied evidence during previous applications in 2003 and 2005 and 2007 when I applied for extension.

Would you advise me to appeal or re-apply?

Directive: you have previously suggested that I can pick any 5 years residency to claim PR, yet they still require you to provide evidence beyond the 5 years time frame.....

Thank you for your opinion.

[Jambo]

Could you please provide the exact wording of the letter?

You can pick any 5 years but as PR is lost if you are absent from the UK for more than 2 years, you will need to provide proof of presence (not treaty right) in the UK from 2010.

[EUsmileWEallsmile]

My EEA3 application for PR has been refused.

Just to give an overview/background a bit more in details about my case:

In light of recent ruling in cases of Ziolkowski and Szeja (C424/10 and C425/10) and following recent amendments to the UK EEA regulations 2006, I have submitted an EEA3 application claiming Permanent Residence to include time spent in the UK prior to Romania's accession to the EU (that is time spent in the UK between 2003 - 2007) when I was registered and authorized to work as a self-employed person under the EC Association Agreement with Romania. I first applied in this category in March 2003 and in march 2004 I was issued with an extension on my stay in the UK as a self-employed person until Jan 2007. On the 1st Jan 2007 Romania has joined EU. In Feb 2007 I was issued with Yellow card as a self-employed person and again evidence was submitted in full. In Dec 2007 I was issued with a Blue card exempt from worker authorization requirements.

I have provided evidence to include Dec 2005 to Dec 2010. But they also asked about what I did since 2010? Please note that they did not ask me to provide further evidence, they simply refused my application without asking for further evidence. My understanding is that I should provide evidence to cover 5 years of continuous residence not 8 years or more!

In my opinion I have submitted enough evidence to cover for my time spent in employment and self-employment as I did not want to make the bundle too heavy and complicated as I have already supplied evidence during previous applications in 2003 and 2005 and 2007 when I applied for extension.

Would you advise me to appeal or re-apply?

Directive: you have previously suggested that I can pick any 5 years residency to claim PR, yet they still require you to provide evidence beyond the 5 years time frame.....

Thank you for your opinion.

From reading your post, you qualified for PR perhaps even on the day Romania joined PR or at least shortly after. You may find that the person dealing with you case did not understand the changes in the regulations, but that is speculation. Did you include a covering letter?

[astra_zeneca888]

Hi there

Yes, I have included a cover letter to mention that I wish to apply for PR on the basis of my being resident in the UK from 2005- 2010. I cited in my letter the ECJ ruling in the case of Ziolkowski C-424/10 and I even include a copy of the ECJ ruling which came out in Dec 2011. I made it very clear that this is the period I wish to rely upon.

They claim I did not provide evidence of exercising Treaty rights from 2010 until today. They wrote 'I did not provide evidence of being a qualified person'. No reference was made to the ECJ ruling.

I provide enough evidence to cover for even longer period, I included evidence from 2003-2010....