Applying as EEA or Canadian citizen confusion?

[Adam Th]

Firstly hello, I'm new here however have been scanning these pages over the past few weeks along with other fora and .gov pages trying to figure out my wife's circumstances and am completely lost.

It's probably best I explain our situation first.

I am a British cititzen, born in England in 1979 and always lived here.
My wife was born in Slovakia (ex EU8) and first entered the UK on a language student/au pair visa in 2001, stayed for a year then returned to France where she was also resident as a student/au pair in 2002.
She then remained in France until moving to Canada in 2004. In 2008 she acquired Canadian citizenship having applied some time before that. She spent approx the last year in Canada actually travelling abroad working for an Irish airline and working part time in the UK as a nanny.

She has now resided in the UK continuously since 2007. We married in 2011 and have two children born here who both have dual Slovak/British nationality. She worked for approx the first year paying NI and since 2009 has been either self sufficient or a student. Coming from Canada she was a bit out of the loop with residence matters for EEA nationals and did not at any point pay CSIS, or register for the short lived WRS (worker registeration scheme for EU8 nationals). She has only paid NI between 2007-2009 and has not claimed any UK benefits except for 6 months while pregnant with our first one in 2009-10, since then she has been completely dependant on me and not left the UK for any periods in a year exceeding around 30-40 days.

Firstly we're a bit confused what her current status is here. I believe despite non payment of CSIS she is residing here under EEA treaty rights. She has never applied for a right to abode as a Canadian.

Secondly she would now like to naturalise as a UK citizen, however we are confused, firstly if she has any rights to and secondly what approach we need to take. She has already sworn an oath to our queen and has lived here over ten years married to a Brit, she also has a degree aquired in the UK.

However it seems she does not qualify for Permanent Residence (which I belive is a requirement for EEA applicants) due to gaps in CSIS. I'm also not sure she can apply as Canadian as she hasn't used any rights granted to Canadians.

To further complicate matters we are both likely to be travelling back and forth between the UK/Slovakia in the next few years so I'm not sure she will be able to acquire settled status here in the future.

If anyone can point us in the right direction for her application as a British citizen we would be extremely grateful at this point.

[CR001]

To apply for citizenship, it is mandatory to have PR or ILR.

PR is attained automatically for EU citizens after 5 years of being a qualified person exercising treaty rights, by either working, being self sufficient with CSI or student with CSI. She would then need to apply for a Document Certifying PR and only once she has that, can she apply for British citizenship.

If she wanted to use her Canadian citizenship, she would have needed to be in the UK on a visa under the far more expensive UK Immigration Rules, meet the 5 year residence requirment (usually 2 x 2.5 year spouse visas), before applying for ILR (indefinite leave to remain), before she can then apply for citizenship.

[secret.simon]

She has never applied for a right to abode as a Canadian.

Commonwealth citizens with Right of Abode would have acquired the Right of Abode before 1983. After 1983, the only way to acquire Right of Abode in the UK is by being or becoming a British citizen.

Coming from Canada she was a bit out of the loop with residence matters for EEA nationals and did not at any point pay CSIS, or register for the short lived WRS (worker registeration scheme for EU8 nationals). She has only paid NI between 2007-2009

It sounds like she has never exercised treaty rights in the UK at all.

I believe despite non payment of CSIS she is residing here under EEA treaty rights.

The way it was explained to me, a person in your wife's position is "lawfully present" in the UK, but not "legally resident". Her legal residence would only start when she exercises the treaty rights by working, etc, in the UK.

So, her five year countdown to PR would start now if she were to get the appropriate private health insurance.

To further complicate matters we are both likely to be travelling back and forth between the UK/Slovakia in the next few years so I'm not sure she will be able to acquire settled status here in the future.

The more you can avoid this the better.

An absence of less than six months in a year does not break continuity of residence. So long as you keep it under that limit, she should be able to acquire PR/settled status in five years time.

[Adam Th]

Thanks both for the replies.

It's a frustrating situation, we would have happily paid CSIS however weren't aware of the requirement until we started to look at this process a few weeks ago. As far as I can see this is the only factor holding back a EEA application for PR for her. She entered from Canada where she was paying health insurance hence cancelled her EEA insurance years ago when she returned her Slovak ID card, but because of the NHS she didn't give it any thought when arriving here in the UK.

I'm sure it's well discussed elsewhere but is there any way around non payment of CSIS.

Does she need 5 years married to a British citizen for PR? I read somewhere about 3

Otherwise I expect we'll give up on it as she won't be able to accrue 5 years here now.

[CR001]

I'm sure it's well discussed elsewhere but is there any way around non payment of CSIS.

No, unfortunately there isn't.

Does she need 5 years married to a British citizen for PR? I read somewhere about 3

The 5 years residence requirement for PR is completely separate to the 3 year spouse of British citizen requirment to apply for Citizenship. The requirement to apply for citizenship is to hold PR or ILR, both of which have rules that have to be met and one of them is 5 years residence.

[twgal]

She cannot apply as a Canadian. Canadians can only stay in the UK for up to 6 months, this is what I was told when I entered the UK on a Canadian passport (I have dual Can - EEA citizenship as well). She needs health insurance and 5 years of exercising treaty rights, counting from now....

Sorry, but when you live in another country you need to check what your rights and obligations are - I don't think she can say "I didn't know" that health insurance was a requirement.

This is completely irrelevant to the topic, but just out of curiosity, has she voted in the EU exit referendum? I hope so. Canadians can vote in all elections.