EEA Applying for UK Citizenship (Special Case)

[flaviofilho]

Hi all.

First post in this forum.
I've read a lot in the forum, but my case has some particularities I'd like some help to clarify.

To summarize:

I'm Italian Citizen.
I have lived in UK from December 2007 to November 2013. So it makes almost 6 years in total. Never absent for more than 2-3 weeks per year during this period.
In November 2013 I left UK and spent 7 months in my country for health reasons, to be close to my family.
Then returned to UK in June 2014. Lived and worked until January 2015. Left again for same health reasons. And so far I´m 1 Year and 4 months out of UK. And will return in a couple of months.
*Just an add-on: I have a limited company registered in UK since 2012, so I can work as self-employed as I did and will upon my return.

So, my interpretation of the rules is that since I have fulfilled the requirement of 5 years, I'm still eligible but now I have to return to UK and live a minimum of 12 months before I can apply for UK Citizenship. Is that correct?

Also, as the reason for leaving for both periods was a serious health issue, and being close to family was essential, would this be taken into consideration somehow?

Thanks,
Flavio

[member]

How did you exercise your treaty rights between December 2007 and November 2013?

[Richard W]

Ordinarily, I'd say you had to live in the UK for another 5 years. The problem is that in the 5 years preceding the application, you may only be outside the UK for 450 days. Your current absence already exceeds 450 days.

Also, as the reason for leaving for both periods was a serious health issue, and being close to family was essential, would this be taken into consideration somehow?

It's possible that your absence might be ignored. If it will be ignored, and you have qualified for permanent residence (which would be on the basis of 5 years in 2007-2013), you may apply for naturalisation as soon as you have obtained your DCPR. You now need to know whether the absence will be ignored. It would probably be better to get another year's residence in the UK before you apply, so that you at least satisfy the rule of no more than 90 days absence in the preceding 12 months.

[Noetic]

How did you exercise your treaty rights between December 2007 and November 2013?

That really is the crux of the matter. What did OP do here before establishment of their company in 2012. If they exercised treaty rights and can prove this at the very least apply for the DCPR on the basis of evidence from December 2007-November2013.

Then they are free to try and apply under discretion for citizenship once they pass LITUK and English test etc and if they fulfil the good character requirements etc. No guarantee it'll be accepted but health reasons may be.

If they didn't exercise treaty rights during the full 5 years then PR clock doesn't start until they return to the UK and start eceev treaty rights and continue to do so for 5 years(that's in the increasingly unlikely event the UK doesn't leave the EU)

[noajthan]

First stage: has OP acquired PR?
- possibly sometime starting in 2007 through to 2012/13.

Elapsed time of 5 years simply residing in UK is not enough.
The work or self-employment will have to have been genuine and effective.
Rock-solid documentary supporting evidence will be required.

Note: the absence rules are quite different for treaty rights leading to PR and for naturalisation;
(due to quite different regulations & legislation).

Note: even if acquired PR can be lost by an absence of 2 years.

An exceptional one-off absence may be accepted and not break continuity of residence in UK whilst acquiring PR.
Documentation required.

Ref Regulation 3: http://www.eearegulations.co.uk/Latest/ByPage/part1_3

Next steps
A confirmation of PR card (DCPR) is now a mandatory requirement for the privilege of citizenship.
So an application for confirmation of PR needs to be made and succeed - whilst still working on meeting future naturaliation requirements in the background.

See AN guidance on absence limits for naturalisation.
Note the increasingly stringent requirements spanning 7 or 8 years of residence if absence days (per year) are 'excessive'.

All such cases are discretionary and depend on showing a substantial part of one's estate (& future) is in UK.
Ref https://www.gov.uk/government/uploads/s ... e_2016.pdf
- Section 5, page 7+

Takeaway
If PR was acquired by say 2012 it will not have been lost unless due to a subsequent absence from UK of 2 years.
A confirmation of PR card (DCPR) is now required.
No need to exercise treaty rights in UK any more assuming PR status has been acquired.

Naturalisation requirements need to be examined in light of all past absences.
The risk is any naturalisation application will have to be timed correctly and will now be discretionary.

[flaviofilho]

Wow. Thanks a lot guys.
I've read and will read again to fully comprehendunderstand what all the acronyms mean (I'm really new to all this).

Respondind to a question, before 2012 when I stablished a limited company I've worked 4 years for The Times newspapers fully employed.

Thanks,
Flavio

[noajthan]

Wow. Thanks a lot guys.
I've read and will read again to fully comprehendunderstand what all the acronyms mean (I'm really new to all this).

Respondind to a question, before 2012 when I stablished a limited company I've worked 4 years for The Times newspapers fully employed.

Thanks,
Flavio

OP - original poster; used on online message boards and forums.

PR = permanent residence

DCPR = document certifying permanent residence

AN = UK application form for adult naturalisation

[Noetic]

Respondind to a question, before 2012 when I stablished a limited company I've worked 4 years for The Times newspapers fully employed

Excellent so you only need 1 more year, the year you established your company, to prove PR.

[flaviofilho]

@Noetic

Yes. But I have almost 3 more years.
But after almost 7 years, I left twice as I mentioned before.

I'm still not sure as per other post here, I'd "maybe" have to be 5 more years? But since I 'anaged to be almost 7, and AFTER this I'd beem more than 90 days anyway. So I'd have to return and WAIT 1 year to appply for UK Cotizenship. Right?

[Noetic]

If you have proof of exercising treaty rights for 5 consecutive years get a PR card now. Once you have PR which is after 5 years of exercising treaty rights you don't lose it unless you leave for more than 2 years.

[Richard W]

I'm still not sure as per other post here, I'd "maybe" have to be 5 more years? But since I 'anaged to be almost 7, and AFTER this I'd beem more than 90 days anyway. So I'd have to return and WAIT 1 year to appply for UK Cotizenship. Right?

I think you are referring to my post. Your problem lies with the rules that require you to be living in the UK when you apply for British citizenship. You are allowed to be outside the UK for no more than 450 days in the previous 5 years, and no more than 90 days in the previous 12 months. You fail this requirement. However, the Home Office has the right to ignore this requirement if it sees fit. Note that for naturalisation, the 5 years are not any 5 years, but the 5 years ending on the date of the application.

[noajthan]

@Noetic

Yes. But I have almost 3 more years.
But after almost 7 years, I left twice as I mentioned before.

I'm still not sure as per other post here, I'd "maybe" have to be 5 more years? But since I 'anaged to be almost 7, and AFTER this I'd beem more than 90 days anyway. So I'd have to return and WAIT 1 year to appply for UK Cotizenship. Right?

Have you dug into the following yet? ...

See AN guidance on absence limits for naturalisation.
Note the increasingly stringent requirements spanning 7 or 8 years of residence if absence days (per year) are 'excessive'.

All such cases are discretionary and depend on showing a substantial part of one's estate (& future) is in UK.
Ref https://www.gov.uk/government/uploads/s ... e_2016.pdf
- Section 5, page 7+

[flaviofilho]

@Richard W

Yes, it was referring to your post. Thanks.
OK. I'm almost getting this right.

You mentioned I failed the 5 years requirement.
But as this happened:

First 6 Years: never absent for more than 2-3 weeks every year.
Then out for 6 months. In for 7 momths. Out for 1,5 year.

SO, I'm eligigle for the 5 year minimum, but can't apply now as it's more than 90 days out.

I understand you said the total of no more than 450 days for the LAST 5 YEARS. Right? But from the UK Gov page I understood it refers to THAT period of 5 years, which in my case I already fulfilled?

And then about the last 12 months without being more than 90 days rule, upon return I'd need to wait 1 year before applying...
Ain't this the actual rule?

Sorry. Only trying to figure this right... Still not clear.

[flaviofilho]

@noetic

About the PR Card. Thanks for that.
OK. So I basically have 6 montha to return to UK and apply for a PR Card. How long this alone takes to be granted?

Wow. Seems my case is about a very narrow window to male things happen.

[noajthan]

@noajthan

Yes, it was referring to your post. Thanks.
OK. I'm almost getting this right.

You mentioned I failed the 5 years requirement.
But as this happened:

First 6 Years: never absent for more than 2-3 weeks every year.
Then out for 6 months. In for 7 momths. Out for 1,5 year.

SO, I'm eligigle for the 5 year minimum, but can't apply now as it's more than 90 days out.

I understand the total of no more than 450 days refers to the 5 YEARS. Right?

So upon return I need to wait 1 year for applying...

Sorry. Only trying to figure thos right... Still not clear.

450 days absence normally allowed in past 5 years (before application). With 90 days in the last 12 months (before application).

Out for 6 months + 1.5 years = out for 2 years = 730whatever days.
That's more than 450 allowed in 5 years.

Looks like you fall into the 730 days allowed at discretion over 7 years (depending on your estate).

[flaviofilho]

@noajthan.

Ok. So there's another rule of 7 years...
OK. So I'll have to fulfill this 7 years rule, and it's the last resort.
OR... Requiring a "special case' or something due to health reasons.

AND STILL, other member posted, I'd have to apply to that PR thing before 2 years off. But still, these 2 years off mean consecutive? Because in total I've beean already 2 years off...

For now, every light you guys post here will help me loads to understand my options.

And so far thanks everybody for trying to push infor insode this newbie brain.

[noajthan]

@noajthan.

Ok. So there's another rule of 7 years...
OK. So I'll have to fulfill this 7 years rule, and it's the last resort.
OR... Requiring a "special case' or something due to health reasons.

AND STILL, other member posted, I'd have to apply to that PR thing before 2 years off. But still, these 2 years off mean consecutive? Because in total I've beean already 2 years off...

For now, every light you guys post here will help me loads to understand my options.

And so far thanks everybody for trying to push infor insode this newbie brain.

EU rules: If you have acquired PR then a continuous absence of 2 years means you lose it.

UK Immigration Regulations: reread the discretionary rules in linked guide, page 7-8.

The main rule is based on 5 years.
HO is doing long-time absentees a favour by extending at discretion.

Citizenship is not a 'visa' and there's no special pleading based on health or whatever except perhaps in extreme cases.
(And if there was only the 5 year rule you would fail it for some time to come).

You need to navigate both sets of rules (based on the two different legislation frameworks).

[flaviofilho]

@noajthan

Thank, man.

So it seems I´ll have some problem.
The Booklet you posted, it says:
" To satisfy the residence requirement you should not have been absent for more than 90
days in the last 12 months (okay, I´ve been more than that). If you are married to or in a civil partnership with a British citizen
the total number of days absence for the whole 3 year period should not exceed 270.
Otherwise, you should not have been outside the UK for more than 450 days in the 5 year
qualifying period (but isn't this 'qualifying period', already the period of 6+ years I´ve been here from 2007 to 2013? This is what is a bit confusing yet. I understand I already fulfilled that requirement).

Anyway, I'll re-read as you said, and figure out this better in the next days.

Hey. Thanks everybody all your time helping me for now, OK?
(For sure) we speak soon as I'll probably have some other doubts.

[Noetic]

@noetic

About the PR Card. Thanks for that.
OK. So I basically have 6 montha to return to UK and apply for a PR Card. How long this alone takes to be granted?

Wow. Seems my case is about a very narrow window to male things happen.

You MUST apply for a PR card if you wish to naturalise. You have no choice in that matter as an EEA citizen. Takes about 3 months.

Until you have that you can't apply for naturalisation - full stop.

Also with all absences HO will be looking at these to judge whether you plan to live in the UK, are committed to this place etc. The longer you stay away the less likely that is.

And the 5 year period for PR is unrelated to the qualifying period for naturalisation. For PR you must have exercised treaty rights for 5 consecutive years. In your case from 2007 onwards - PR is automatic but HO need you to supply evidence of exercising treaty rights in that time alongside the PR application.

For naturalisation you must have lived in the UK for the past 5 years prior to applying, of which at least 12 months must have been free from immigration restrictions eg ILR or on EEA route, PR. If married to a British citizen then this is 3 years and without the need to have held PR/ILR 12 months (but you still need a DCPR to apply).

Another point is you must have been in the UK exactly 5 years (3 if married to a BC) to the day before HO get your naturalisation application.

[noajthan]

@noajthan

Thank, man.

So it seems I´ll have some problem.
...
Otherwise, you should not have been outside the UK for more than 450 days in the 5 year
qualifying period (but isn't this 'qualifying period', already the period of 6+ years I´ve been here from 2007 to 2013? This is what is a bit confusing yet. I understand I already fulfilled that requirement).

Anyway, I'll re-read as you said, and figure out this better in the next days.

Hey. Thanks everybody all your time helping me for now, OK?
(For sure) we speak soon as I'll probably have some other doubts.

No!

You are mixing up the EEA rules (& a potential time period to acquire PR) with UK rules on absence.

For naturalistion the absence is counted back from the date of application.
You have to show some commitment, involvement and integration with the country where you are applying for the privilege of citizenship.

We should normally consider exercising this discretion as set out below, but only when we are satisfied that applicants have genuinely thrown in their lot with the United Kingdom and meet the other requirement...

You can get into the head of the caseworker assessing and weighing up your case. here:
https://www.gov.uk/government/uploads/s ... r_18_B.pdf

[flaviofilho]

Thanks guys.

Well, if that is the case, them case is closed.
I can't apply unless here for anpther 5 years...

[flaviofilho]

Thanks guys.

Well, if that is the case, them case is closed.
I can't apply unless in Uk for anpther 5 years...

[noajthan]

Thanks guys.

Well, if that is the case, them case is closed.
I can't apply unless in Uk for anpther 5 years...

Not sure.
Suggest lay out a timeline for past 7 years back in time: 2016 >> 2009

Count absence days per year.
If under 730 in total it may be all good as long as no more than 90 in final year.
Does that compute?

[flaviofilho]

Hey.

Actually not quite...
From 2009 to 2016 it was 2 years out in total... A bit more.
And still been more than 90 days already if I return now.

BUT wait... If I return NOW. And wait for a year, then I might have a chance? The counting from 2010 to 2017?

Other than that. Would I stand a chance to apply anyway to start the process and when the right time comes, appeal to the health issue and hope for the best?

I know a member in this post mentioned "no special cases" in citizenship", etc, but might be my last resort.

[noajthan]

Hey.

A tually not quite...
From 2009 to 2016 it was 2 years out in total... A bit more.
And still been more rhan 90 days already if I return now.

Well. Would I stand a chance to apply anyway to start the process and when the right time comes, appeal to the health issue and hope for the best?

I know a member in this post mentioned "no special cases" in citizenship", etc, but might be my last resort.

Noone here can really say without seeing the timeline laid out. Only you know it inside out.

The caseworker will likely use the Chapter 18 guidance (linked for you, above) so its no good relying on a wing and a prayer;
draw up timeline; check out the HO guidance and see how your case will be assessed.