3yeRs or 5 years? French With BC spouse.....

[maria41]

Hi, i applied in October for citizenship.
I am french but my application is not based on EU treaty rights, because despite being here since 1997, i spent 15 months in Brazil for my husband work. Came back Oct 2012, exactly three years to my application.

My husband is british citizen. I applied as spouse of BC, thinking i only need to provide 3 years residency.
However, i got a letter today saying that as EU citizen and within EU treaty rights, i need to prove 5 years residency and work as well as HMRc and national insurance documents. I am self employed since oct 2012.

So why can't i apply as spouse of a BC which is based on three years? Why 5 years for me? Is this right or is it a mistake and they are being mistaken?
I phoned and was told it meant my application was refused as i cannot prove last five years employment in the Uk ( as i was in Brazil btw 2011 and 2012).

Should i get a solicitor? Anyone has this issue?
Thanks for any advice. Much appreciated.

[Wanderer]

Hi, i applied in October for citizenship.
I am french but my application is not based on EU treaty rights, because despite being here since 1997, i spent 15 months in Brazil for my husband work. Came back Oct 2012, exactly three years to my application.

My husband is british citizen. I applied as spouse of BC, thinking i only need to provide 3 years residency.
However, i got a letter today saying that as EU citizen and within EU treaty rights, i need to prove 5 years residency and work as well as HMRc and national insurance documents. I am self employed since oct 2012.

So why can't i apply as spouse of a BC which is based on three years? Why 5 years for me? Is this right or is it a mistake and they are being mistaken?
I phoned and was told it meant my application was refused as i cannot prove last five years employment in the Uk ( as i was in Brazil btw 2011 and 2012).

Should i get a solicitor? Anyone has this issue?
Thanks for any advice. Much appreciated.

Since Jul 2012 it's five years for spouse of a BC too. How did you apply exactly, as the Spouse of a British Citizen? If so you would need to apply for ILR before BC.....

Could you post more details, this doesn't seem to stack up to me anyway!!

[LilyLalilu]

Did you acquire ILR under the immigration rules? (as you say you applied as the spouse of a BC, Im a bit confused) Or how did you achieve settled status in the UK?
Normally, you would need to be free from immigration restrictions first, which means having Permanent Residence for an EU citizen. Permanent Residence is acquired by exercising treaty rights in the UK for 5 years.
Therefore you cannot apply after 3 years, even if married to a British citizen. The only difference that being married to a BC makes for you as an EU citizen is that you do not need to wait a year after PR before you can apply for citizenship.
I believe that the earliest you could have applied successfully is in the end of 2017.

[Casa]

Also following recent changes, before applying for BC an EEA applicant (which you are) will have to formally apply for a PR registration certificate, which is only acquired after 5 years of residence and evidence of continuity of exercising Treaty rights throughout the 5 year period. It appears from your post that you won't qualify for PR until Oct 2017.

[noajthan]

Hi, i applied in October for citizenship.
I am french but my application is not based on EU treaty rights, because despite being here since 1997, i spent 15 months in Brazil for my husband work. Came back Oct 2012, exactly three years to my application.

My husband is british citizen. I applied as spouse of BC, thinking i only need to provide 3 years residency.
However, i got a letter today saying that as EU citizen and within EU treaty rights, i need to prove 5 years residency and work as well as HMRc and national insurance documents. I am self employed since oct 2012.

So why can't i apply as spouse of a BC which is based on three years? Why 5 years for me? Is this right or is it a mistake and they are being mistaken?
I phoned and was told it meant my application was refused as i cannot prove last five years employment in the Uk ( as i was in Brazil btw 2011 and 2012).

Should i get a solicitor? Anyone has this issue?
Thanks for any advice. Much appreciated.

You need proof of 3 years residency as spouse of a BC.
But as an EEA national you need to have acquired PR - this takes 5 years as explained above.
You also now need a PR card as a mandatory requirement to citizenship (as mentioned above).

The 5 years it takes to acquire settled status subsumes the mere 3 years of residency required by virtue of marriage to a BC.

And the point you have unfortunately misunderstood is you need much more than proof of residency.
You need unimpeachable documentary supporting evidence of exercising treaty rights for 5 years as a qualified person.

The naturalisation guidance booklet is quite clear on the 3::5 years dichotomy.
Ref: https://www.gov.uk/government/uploads/s ... r_2015.pdf
- see section 2, page 6.

The PR guidance is clear on the supporting documents you need to apply for confirmation of PR.

One thing in your favour is you may have acquired PR by now.
That is if you were either working or self-employed or a student or self-sufficient for a continuous 5-year period.
Note: Students & self-employed persons need to have had CSI (health insurance).

What is your timeline of activities since 1997

It's a longshot but you may even have been granted granted ILR on arrival in 1997 - ie under old rules.
Suggest checking the passport you first entered UK with to see if it is stamped &/or annotated with ILR.

If so, there is no need to apply to confirm PR as you are settled. Even your sojourn in Brazil should not have nullified it (as it was under 2 years absence).

Otherwise progress with a PR card application.
When you have that you will be back on track for privilege of citizenship.

[Richard W]

The most galling thing must be that when Maria41 arrived in 1997, she was automatically considered to be settled, just like an Irishwoman. I don't think my EU tenants who sponsored a fiancé and a fiancée in those days had been in the UK for five years.

[vinny]

See also Home Office fails in attempt to deport Italian man resident in UK for 60 years > Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13 (14 January 2016).

[maria41]

Hi everyone.... thank you very much for your comments. It is very helpful.
I did get confused. I thought I was within the rules as spouse of a BC. I do not have a PR or anything like that. When I arrived in 1997, there was no concept of any card or anything. I did not even had to change my driving licence. Only heard of PR recently ….

When I arrived in 1997 I registered briefly at the job centre to help find a job (it did not help!) but in any case I started working very quickly with Natwest at the time. Then I moved to various other banks along the way until I started contracting in 2010. I have been here continuously with the exception of the 15 months I spent in Brazil.

Without any sort of residency permit, I am now feeling very vulnerable. How can I prove I am resident here if HMRC contributions or national insurance count for nothing? I have renewed my passport twice now (French consulate in London) so I do not have the one I used when I first came into the UK. I have also been registered at my embassy since 1997 (with the exception of Brazil time).

It looks like it might turn into a big headache. So it looks like I may have to give up and restart all again in 2017 (and lose all the money I paid) or, try with a solicitor....

I will try to speak with a solicitor as there must be a way despite my 15 months in Brazil as this was work related a beyond my control. W eare planning a one year “gap” in 2017 so I will still may not “fit” within their rules if I have to be continuously here … (

[vinny]

If you have automatically attained PR prior, probably in 2006, then an absence of less than 2 continuous years will not break your continuity of residence (15(2)).

[maria41]

Vinny thanks you very much. What you say makes me feel better. I was absolutely crushed after my call to the Home Office and being told my application would be refused.

I have contacted HMRC for various docs requested in the letter I receive from HO and I will try to gather as much info and docs as possible. I won't give up without a fight.

Surely they should be able to see, from all my tax and National Insurance contributions, that I have been paying tax and working in this country? Or is this not enought to prove that I was living and working here? It seems insane to me....

[noajthan]

Vinny thanks you very much. What you say makes me feel better. I was absolutely crushed after my call to the Home Office and being told my application would be refused.

I have contacted HMRC for various docs requested in the letter I receive from HO and I will try to gather as much info and docs as possible. I won't give up without a fight.

Surely they should be able to see, from all my tax and National Insurance contributions, that I have been paying tax and working in this country? Or is this not enought to prove that I was living and working here? It seems insane to me....

Don't rely on or necessarily believe the HO helpline.
May not be accurate & they won't be held accountable for any advice.

If you can't find or can't prove you had ILR granted under some older (UK) rules then its all about PR (under EU rules).

You need to dig in to how you could prove exercising treaty rights prior to 2006 - if you have a solicitor suggest ask her (him).

Do you need 5 years exercising treaty rights or did you just have to be a qualified person (qp) at a snapshot in time? - not sure.

If you operate on current EU rules (ie post-2006) you definitely need to show you were a qp for a continuous period of 5-years.
Eg as a worker.

Be aware a 1 year gap year is a no-no (except in very exceptional circumstances - going travelling is not a good enough reason)
- under EU rules, it will break your continuity of residence in UK (as will 'normal' absences of more than 6 months per year).

It's a longshot (as its not clear how long HO keeps records for, especially on an EU/EEA citizen) but you could request a SAR from UKVI to see what papertrail you have created over the years;
you may/may not something useful filed there, possibly including whether or not you have ILR.

Surely worth a £10 punt:
https://www.gov.uk/government/publicati ... mmigration

[maria41]

Thanks Noajthan for the link. I will fill the application with the border agency, as that might help.

It is hard to prove I was working so far back in time, as many companies don’t keep records beyond 6 years. Anyway, working my way through all the places I worked in hope some may provide a certificate.

My time line
: Natwest /RBs from 1997 to 2000 as staff (still waiting for them to see if the can send me a doc).
TD Bank from 2000 to 2001, as staff (no answer)
CBK from 2001 to 2004, as staff (trying to find our out contact in HR)
Abbey/Santander: 2005 to 2007, as staff (they don’t hold records beyond 6 years)
2007/2008: 11 months travel (in South America).
2008 to 2009: BNPP as staff (they sent a certificate)
2010 to 2011 : contracting through (my husband and mine) limited Company, I have all records.
End of 2011 (although the Limited company was still up and running I did not earn) – in and out of Rio
2012 Previous Ltd company closed down. Sept starting new Ltd company and contracting since Oct 2012.

I also wanted to add, I spent about 12 to 15 months in Brazil (on and off as I kept coming back to sort out things) but we went to Rio because my husband was asked to open an office over there.

SO, should I include in my folder my husband contract regarding Brazil? Or provide only info they ask?

If I have to wait until end of 2017 to have continuous employment through my current Limited company, this is going to be a massive pain. My husband works in the Oil And Gas industry, and like 250,000 people in this industry, he has been told he is out at end of the month. There won’t be any jobs for the next 2 years I guess. WE were planning to rent the house and go travelling for a while… I guess I can’t if I have to wait.
We’ll see.
Thanks you all for your suggestions and advice. I won’t give up easily.