Which route shall I shall I apply through?

[aleksandraaa]

Hello,

I am a Polish citizen, hoping for a naturalisation.

I have moved to the UK in September 2009 to study. At the time I was told by the funding body for my PhD studies that I need to work for a month to gain the residency status allowing me to get a studentship afterwards; I was employed as a visiting scientist for a month.

I had an EHIC card (valid till march 2010) at the time, but to be fair the EHIC card does not cover people who work abroad (therefore it was not 'really' valid). I was working for a month and then started my PhD. For Four years I have been on funding body payroll as a student (no taxes - studentship). I was convinced I am eligible for NHS on the same grounds as the residents are as my course was for over 6 months. I was not prolonging my EHIC card - and the info about NHS eligibility came from my uni. I guess I was misinformed/unaware, but not for a moment I thought that in western Europe I can legally work 35 hrs a week and not be comprehensively insured. I had a full studentship (14900 per annum) during my studies

In 2013 I got married to a (working full time) British citizen. In December 2013 I got my viva voce examination, and I started working in January 2014 full time.

I passed the Life in the UK test, and I am meeting the language requirements.

I do not understand anymore which route for naturalisation I shall go through, and when can I finally apply with a good chance to be accepted. I would be very grateful for any advice!

[secret.simon]

I was convinced I am eligible for NHS on the same grounds as the residents are as my course was for over 6 months. I was not prolonging my EHIC card - and the info about NHS eligibility came from my uni.

You were correctly informed that you were eligible for the NHS. However, if you did not have either an EHIC card or CSI, you would be ineligible for PR, which is issued under completely different and unrelated rules.

Do you have an EEA student card issued by the Home Office before 2011? If you have that, there are transitional provisions for students who did not have CSI/EHIC before 2011.

[CR001]

In addition to secret.simons advice/post, you now also need proof of permanent residence before you can apply for citizenship and you have to submit the 'document certifying permanent residency' (which youhave to apply for) with your citizenship application.

[aleksandraaa]

I do not have an EEA student card, or at least I am not aware of it - I have not applied for one.

When I arrived the HR person at my work (unit where I was doing my PhD studies) was dealing with my registration for national insurance and I was told 'everything is sorted' and I was very naive not to undergo any other processes - I thought I have met all the formal requirements.

When can I apply for the 'document certifying permanent residency' on the basis of my CV? I did not have an EHIC valid from 2009-2013, and I did not purchase additional CSI as I did not know that I need it. My EHIC expired in March 2010, but to be fair - I was paid money abroad and I was a factual resident abroad, so I don't understand how I could have been eligible for my home EHIC (in fact UK was my home at the time!).
Would I ever be able to apply for it as there is a big gap in my 'csi' CV?

I would have, of course, purchased the insurance if I ever was told it is a requirement!

[secret.simon]

I would have, of course, purchased the insurance if I ever was told it is a requirement!

The requirements are clearly stated in the 2004 EU Directive and the 2006 EEA Regulations that transpose it into UK law. Ignorantia juris non excusat.

Would I ever be able to apply for it as there is a big gap in my 'csi' CV?

The requirement for PR is five continuous years of exercising treaty rights. Any gap resets the clock to zero.

You mentioned that you were working during the time that you were doing your PhD. Did you have a formal contract of work? Were you getting paid (no matter how nominally) for the work, apart from any scholarship/studentship (which I doubt counts as work related pay)? That is likely the only grounds on which you could be eligible for PR.

PR is a requirement for citizenship, so no PR, no British citizenship.

[noajthan]

Don't be too hard on yourself, you aren't the first to have been caught unawares & you won't be the last.
The intricacies, subleties and nuances of EU free movement are a mystery to many citizens despite the EU being the elephant in the room.
For example, do you know how many (how few!) EEA workers actually claim benefits - in comparison to home-grown native Britons?!.

To acquire PR your PR clock needs to be (/have been) running continuously for 5 years as a qualified person.
That is 'qualified' in the EU treaty rights sense (not in an intellectual sense), eg as:

• a worker;
  self-employed;
  jobseeker (but not for too long!);
  student - with CSI/EHIC or a RC issued to student in/before 2011;
  self-sufficient - with CSI.

Worst case your PR clock started with your full-time work in 2014 & will run to 2019.

[secret.simon]

Worst case your PR clock started with your full-time work in 2014 & will run to 2019.

Assuming no Brexit or significant changes to EU rules.

[aleksandraaa]

You mentioned that you were working during the time that you were doing your PhD. Did you have a formal contract of work? Were you getting paid (no matter how nominally) for the work, apart from any scholarship/studentship (which I doubt counts as work related pay)? That is likely the only grounds on which you could be eligible for PR.

I had a formal contract. I was getting paid the studentship monthly into my account (and I was receiving payslips), but I guess it is not considered work related pay as it is not taxed and no national insurance contribution was deducted from my payments.

I do not understand:
1) How my friends who are in exactly the same situation as I was (studying since 2009) managed to get naturalisation on the same grounds in 2015 and I am not in 2016 - it does not seem fair and like-for-like.

2) Why I cannot get the naturalisation on the basis of 3 years as a spouse (is that because PR requires 5 years?)

3) I was told specifically I am to register with NHS as a student and letter from my college was used to regiguster. I still do not understand how I was exercising my right to the NHS without having insurance for those four years.

I am not trying to be difficult, I just do not understand what I was doing wrong! Is there any way to discuss those issues with someone (immigration lawyer? home office?) or are those non-discussibles?

Thank you guys, you are extremely helpful!

[noajthan]

You mentioned that you were working during the time that you were doing your PhD. Did you have a formal contract of work? Were you getting paid (no matter how nominally) for the work, apart from any scholarship/studentship (which I doubt counts as work related pay)? That is likely the only grounds on which you could be eligible for PR.

I had a formal contract. I was getting paid the studentship monthly into my account (and I was receiving payslips), but I guess it is not considered work related pay as it is not taxed and no national insurance contribution was deducted from my payments.

I do not understand:
1) How my friends who are in exactly the same situation as I was (studying since 2009) managed to get naturalisation on the same grounds in 2015 and I am not in 2016 - it does not seem fair and like-for-like.

2) Why I cannot get the naturalisation on the basis of 3 years as a spouse (is that because PR requires 5 years?)

3) I was told specifically I am to register with NHS as a student and letter from my college was used to regiguster. I still do not understand how I was exercising my right to the NHS without having insurance for those four years.

I am not trying to be difficult, I just do not understand what I was doing wrong! Is there any way to discuss those issues with someone (immigration lawyer? home office?) or are those non-discussibles?

Thank you guys, you are extremely helpful!

1) May or may not be comparable cases.
You have not been refused yet - you have just not made it easy for yourself.

2) Because (fortunately for your pocket, your heath & sanity) you are not on the UK immigration route.
Marriage to a BC confers no particular rights in immigration terms.

(fyi Brits with non-EEA families come out even worse; definitely at bottom of the food chain).

3) Because rules for healthcare are orthogonal to immigration regulations.
Do not expect joined-up governmental thinking.

Access to healthcare depends on residence.
Emergency service is not denied to anyone.
And health service workers are not immigration law experts however much HO would like them to be proxy immigration officials.

It is frustrating but it is not discussible nor negotiable.
It is not even personal; you are dealing with a Kafkaesque bureaucracy here.

Deal with this step by step - see if you can make a case for being a worker exercising treaty rights from PhD days.

Work just has to be shown to be genuine & effective - no minimum hours or pay defined in EU law.
Lack of tax/NI is not necessarily a dealbreaker
(Although do note that HO plays hardball in this area and is increasingly applying its, somewhat controversial, MET test & etc to assess EEA workers).

You could assemble your evidence & attempt an application for PR card.
You are risking less than £100.

Otherwise keeping working, keep PR clock running - you will acquire PR in 2019 or so.
Go from there: naturalisation then the Holy Grail of British passport.

Be aware: Landscape & goalposts may/may not be different by then so keep abreast of immigration matters.

Best of British luck.

[secret.simon]

I had a formal contract. I was getting paid the studentship monthly into my account (and I was receiving payslips), but I guess it is not considered work related pay as it is not taxed and no national insurance contribution was deducted from my payments.

You might be in luck. You may qualify as a worker, not as a student.

The standard for worker is that the work that they do is "genuine and effective" and not "marginal and ancillary". Provided that you can prove that the work that you did meets the first requirement and avoids the second, you should qualify on that basis.

An additional wrinkle would be that for you as a Polish citizen to have worker status pre-2011, you would have to have been registered on the WRS. Otherwise, your clock as a worker would only start from May 2011. That would make you eligible for PR in May 2016 and you could then immediatly apply for citizenship as the spouse of a British citizen.

Payment of tax or national insurance has nothing to do with it, unless you committed fraud in non-payment of tax.

1) How my friends who are in exactly the same situation as I was (studying since 2009) managed to get naturalisation on the same grounds in 2015 and I am not in 2016 - it does not seem fair and like-for-like

Have you asked them on how they did it? Perhaps they had EHIC cards or a pre-2011 student registration card.

2) Why I cannot get the naturalisation on the basis of 3 years as a spouse (is that because PR requires 5 years?)

Correct. PR requires 5 years as does ILR for non-EEA citizens and having one of them is a pre-requisite for a citizenship application.

If you are the spouse of a British citizen, then you can apply for naturalisation immediately on acquiring PR and your absences and other requirements are over three years, but the PR itself takes 5 years.

3) I was told specifically I am to register with NHS as a student and letter from my college was used to regiguster. I still do not understand how I was exercising my right to the NHS without having insurance for those four years.

You have a right to access the NHS free of cost as an EEA citizen. But the rules for PR have nothing to do with the rules for accessing the NHS. The rules for PR require that students and self-sufficient persons and their non-EEA families have CSI (comprehensive sickness insurance) to count as qualified persons for the purpose of exercising treaty rights.

Your rights to access the NHS are unrelated to the rules surrounding EEA immigration.

I would recommend against speaking to the Home Office. There have been many examples of the Home Office call centre giving incorrect advice. And they are not bound by their own incorrect advice.

EDIT: "Orthogonal" is my new word for the day. Thanks noajthan.

[aleksandraaa]

Thanks a lot,
however, when it comes to WRS:
http://www.gcnchambers.co.uk/news/exten ... s_unlawful

I found all your advice extremely helpful, and you have really helped me to clarify the understanding of the situation!

[aleksandraaa]

The friends of mine were applying for naturalisation without PR card (pre-November 2015); So just less than 6 months ago, and they were granted naturalisation.

[secret.simon]

Thanks a lot,
however, when it comes to WRS:
http://www.gcnchambers.co.uk/news/exten ... s_unlawful

That judgement is on hold till at least February 2017, when the Court of Appeal will hear the government's appeal on that case. There may possibly be a further appeal to the Supreme Court after that.

The friends of mine were applying for naturalisation without PR card (pre-November 2015); So just less than 6 months ago, and they were granted naturalisation.

That is probably why the requirement to have a PR card before naturalisation was introduced. Naturalisation staff are likely not educated or informed enough to make decisions on EU law. Having a PR card before application means that the PR criteria is judged by people skilled in those laws and regulations.

I found all your advice extremely helpful, and you have really helped me to clarify the understanding of the situation!

You're welcome.

[ohara]

The PR card requirement came into effect from 12th November 2015