EEA Nationals – some frequent questions answered
Now the dust has settled a little, many EEA nationals are starting to make applications for residence certificates, permanent residence certificates, or naturalisation. These are some questions which I have seen crop up in forums regularly, with answers which I hope will help.
Please note – all applications are different, and if in doubt please seek legal advice. Please email firstname.lastname@example.org with your specific enquiries.
1) Why should I use the Nationality Checking Service for my PR or my naturalisation application?
Local councils provide services to naturalisation applicants which involves checking forms to see that they are completely correctly, making sure that supporting documentation is in place, and copying documents such as passports so that only copies need be sent to the Home Office. Some councils provide a service to Permanent Residence Certificate applicants in which they only check the passport and make a copy so that the original doesn’t have to be sent to the Home Office.
So, what is the advantage of using these services? In our experience, there isn’t a great advantage to using the NCS for a citizenship application. Yes, you would be able to submit an application without having to send your original passport, but you can do this anyway if you use a solicitor or OISC advisor for assistance, or you can simply walk into any High Street solicitors and ask them to make a certified copy instead. If you have a few simple, basic questions then the NCS can help you, but if the application is very simple then they provide no real assistance, and if the application is complicated then they are simply not trained to advise. Anecdotal evidence suggests that they sometimes give incorrect advice. Most naturalisation applications are very straight forward. Exceptions to this may be those for children (registration) when the parents do not have permanent residence cards or applications where the applicant was issued with ILR or PR many years ago and have little records of their stay in the UK since then. With these applications it is likely that the NCS cannot provide adequate assistance. With regard to the PR application, only some councils provide this service. It is useful if you can’t apply sending your original passport or ID card, for example if you are travelling soon and don’t have an ID card. Other than that, they are of little use and cannot provide advice.
2) How do my children qualify for citizenship?
This is more straight forward than it seems.
A child born in the UK is automatically British if the EEA national achieved PR before their birth. This is not linked to any applications for the PR certificate. For example, if a German national comes to the UK in January 2006, works for five years continuously, has a child in May 2011, but doesn’t apply for a Permanent Residence certificate until November 2016, the child is still automatically British. All the parent would need to do is make a passport application for them, although this will be more straight forward if the parent gets the PR certificate first.
If the EEA national doesn’t achieve PR until after the birth of their child, then the child will have to register as British, using form AN1.
3) Can I use the 10 year rule or other UK immigration rules?
This is a ‘maybe’, but it can be complex and it is always an idea to get advice from a professional, and if that is an OISC firm that they are registered at level 2.
The 10 year long residence rule is for people who have been in the UK legally for 10 years. If you are an EEA national who has been in the UK for 10 years but cannot show that you were exercising treaty rights for a five year continuous people then it is likely to be the case that you can’t show that you have been legally resident for a 10 year period.
With regard to other rules, it may be that an EEA national who is married to a UK national can apply to remain as per paragraph FM of the immigration rules, but this will depend on their status at the time of application and the income of the EEA national. Again, legal advice should be sought.
4) When can I naturalise?
This depends on whether or not you are married to a UK national.
If you are not married to a UK national, then you qualify to naturalise 12 months after the date that you achieved permanent residency. This has no bearing on when you were issued with the PR certificate. So, if you are an Italian national who came to the UK in July 2008, worked continuously from then until December 2016, and then applied for the PR card, you qualify for citizenship as soon as the card comes in. This is because your PR qualification date was actually July 2013, so the 12 months without immigration restriction has already passed.
There are two points to this which must be noted. The first is that you must have the PR card before you apply for naturalisation. The second is that it is up to you to tell the Home Office when your qualification date was, you don’t ask them.
In order to make this process more straight forward we advise that you only send evidence of the five required years of exercising treaty rights, in this example from July 2008 to 2013, or from any five year period ending more than 12 months ago, such as November 2010 to November 2015, so that the documents clearly show that the PR qualification date was more than 12 months ago. This means that as soon as the PR certificate is approved, the citizenship application can be made.
If you are married to a UK national, then you still need to have the PR card, but there is no requirement to be free of immigration control for 12 months. So, you could send documents for the most recent five years, and then naturalise immediately.
Obviously you would need to meet the other criteria according to the Immigration Rules. If you are unsure as to what these are, please email email@example.com for assistance.
5) Should I make a Subject Access Request (SAR)?
We see very little point in doing this. There are two theoretical reasons to apply for a copy of your Home Office file. The first is to see your dates of absence from the UK, which are needed for both PR and citizenship. The Home Office usually do not record dates of entry and exit to and from the UK for EU nationals, so even if you do apply you may find that the file has little or no information. In our opinion, it’s not needed. Take a best guess of dates of absence during the five year period for which you are claiming, say it is a guess, and don’t worry. Only absences of six months will have an effect on the application, so if your absences are well under this there should be no issue.
The other reason that people are applying for their Home Office file is to find out their PR qualification date for naturalisation. As above, it is not for the Home Office to say, but for the applicant to say based on the documents they have sent.
If you are still unsure about this, please email firstname.lastname@example.org and we can help with the process and advise as to whether the SAR is required or not.
6) How does the Worker Registration Scheme affect things?
If you are from an A8 country and came to the UK before May 2011 then you cannot automatically qualify for PR because of five years in employment. You will have needed to meet the conditions of the Worker Registration Scheme. If you didn’t and you don’t have an exemption, it means that you can only count from May 2011 towards your PR.
It may also mean that you are deemed to have been working unlawfully prior to May 2011. This will affect any naturalisation application you make, as naturalisation requires no breaches of law within the last 10 years. Again, if you have concerns about this you should contact us on email@example.com for assistance.
7) When should I seek legal advice?
Any application which involves EEA nationals who have been self employed, have relied on private health insurance or an EHIC card, or who have been in the UK for significantly more than five years, may be too complex to deal with without legal assistance.
Most legal advisors, including MediVisas, offer three levels of service: Full Representation, a document check, or a consultation. Consultations start from £100 for an hour, and this may well be all you need to clarify the documents you need to send and what sections of the form you need to complete.
We see a lot of refusals, because people send the wrong documents or misunderstand the rules.
Please do email firstname.lastname@example.org if you would like to discuss any of these options.