Can I apply for Brotish nationality without getting PR?

[BBQrabbit]

Dear all,

This forum is really helpful. I'm here again to confirm one thing.

I came to the UK for study in 2001 and got married with my Spanish husband in 2003. The EEA family residence card was issued in 2005 (maybe 2004, i cannot remember exactly). As I know I can apply for PR using form EEA4 after our 5th anniversary. However I was told that I may get PR automatically after 5 years marriage.

My question is, can I apply for the British nationality one year after the 5th anniversary without applying for a PR (My husband will stay on his Spanish status) ?

Many thanks!

[John]

However I was told that I may get PR automatically after 5 years marriage.

I am not sure that is right. I think that better is not 5 years after marriage, but 5 years after starting to exercise EU Treaty Rights in the UK.

That is, "merely" getting married to an EU Citizen does not automatically mean you started to exercise EU Treaty Rights in the UK. You clearly continued to be in the UK on your Student Visa.

So it was not until the issue of the Residence Card .... 2004? .... 2005? that you started to exercise your EU Treaty Rights .. and accordingly will get PR sometime in 2009 or 2010.

My question is, can I apply for the British nationality one year after the 5th anniversary without applying for a PR

Yes, but that is the 5th anniversary of you getting the Residence Card, not of the marriage. And do appreciate that whilst it is not required for the PR, you will need to pass the Life in the UK Citizenship Test before applying for Naturalisation.

[BBQrabbit]

Thank a lot John!

I guess there might be some misunderstanding. I think it should be my husband, but not me to excise EU Treaty Rights in the UK. My husband was a student during his first 5 years in the UK and then as an employee for another 5 years till now. I think he is qualified for what you just said.

We've been living together one year before we got married. And we've almost been married for 5 years now. I don't understand why you said I didn't excise EU treaty right. It should be something that my husband does in the UK.

Can you please check this again ? I'm really grateful for that!

Thanks a lot, again!

[John]

No, both of you are now exercising EU Treaty Rights. Your husband because he is an EU Citizen, and you because you are his "family member".

I don't understand why you said I didn't excise EU treaty right.

Because at the time you were in the UK on a UK-issued Student Visa.

Life is now very different thanks to the EU regulations that came into force on 30.04.06. However prior to that date you didn't start exercising EU Treaty Rights until you get your Residence Card.

My husband was a student during his first 5 years in the UK and then as an employee for another 5 years till now. I think he is qualified for what you just said.

Has he ever bothered to get confirmation of his PR status? If not, based upon what you have posted, I think he got PR status automatically on 30.04.06, when the new regulations came into force. However if he applied for and got PR before that, then obviously that earlier date applies.

Either way it looks clear that he has had PR status for more than one year, and subject to passing the Life in the UK Citizenship Test, he is entitled to apply for Naturalisation, if he wishes.

[Plum70]

Dear all,

This forum is really helpful. I'm here again to confirm one thing.

I came to the UK for study in 2001 and got married with my Spanish husband in 2003. The EEA family residence card was issued in 2005 (maybe 2004, i cannot remember exactly). As I know I can apply for PR using form EEA4 after our 5th anniversary. However I was told that I may get PR automatically after 5 years marriage.

My question is, can I apply for the British nationality one year after the 5th anniversary without applying for a PR (My husband will stay on his Spanish status) ?

Many thanks!

A family member of a EEA National acquires permanent residency after 5 years continuous residence in a EEA member state and as long as their EEA spouse has been exercising treaty rights continuously in same state for 5 years. The clock starts not when one receives the Residence card (as this is a mere confirmation of rights already acquired), but from the time of marriage to the EEA National (as long as they were exercising a treaty right at the time).

So BBQ, you will acquire PR this year (as long as your spouse has been exercising a treaty right in the UK continuously for 5 years) and it is advisable that you apply for the PR stamp (as proof of your rights) as this would strengthen your naturalisation application. You also need to pass the Life in the UK test.

Hope this helps

[John]

Plum70, taking account of the different regulations in force prior to 30.04.06, can you please state the source of that?

The clock starts not when one receives the Residence card (as this is a mere confirmation of rights already acquired)

Only since 30.04.06.

[BBQrabbit]

Hi there,

I appreciate both of you. Thank you so much for such detail explanations. I'll take your valuable advices and consider it carefully before going on.

Thanks again!

[86ti]

Here is what UKBA has to say about naturalisation: PR +12 months ending on or after 30 April 2006.

[John]

Yes exactly :-

If you are a European Economic Area (EEA) national or a Swiss national or the family member of such a person, you will automatically have permanent residence status if you have exercised EEA free-movement rights in the United Kingdom for a continuous five-year period ending on or after 30 April 2006.

(my emphasis!)

But the point is that she was not exercising "EEA free-movement rights" in the UK until she got issued with her Residence Card.

So again, why do you think that the pre-30.04.06 marriage automatically made her start to exercise "EEA free-movement rights"? She was clearly here in the UK on a student visa.

[Plum70]

Plum70, taking account of the different regulations in force prior to 30.04.06, can you please state the source of that?

The clock starts not when one receives the Residence card (as this is a mere confirmation of rights already acquired)

Only since 30.04.06.

EU Regulation 2006 [15(1)(b)]

"The following persons shall acquire the right to reside in the United Kingdom permanently -

(b) a family member of an EEA National who is not himself an EEA National but has resided in the UK with the EEA National in accordance with these Regulations for a continuous period of five years"

(my emphasis)

The date one receives a residence card does not determine when they began legal residence in the UK as a family member of a EEA National. It is only a confirmation of a right they already have. The Regulation even states that it is not mandatory to obtain a RC but it does help to clarify/verify one's rights.

Marriage to a EEA National does not automatically imply the exercising of treaty rights but marriage to a EEA National who is exercising a treaty right in a member state (in this case the UK) confers same rights on the non EEA Spouse after marriage.

Hope this answers your qs John

[86ti]

Yes exactly :-

If you are a European Economic Area (EEA) national or a Swiss national or the family member of such a person, you will automatically have permanent residence status if you have exercised EEA free-movement rights in the United Kingdom for a continuous five-year period ending on or after 30 April 2006.

(my emphasis!)

But the point is that she was not exercising "EEA free-movement rights" in the UK until she got issued with her Residence Card.

So again, why do you think that the pre-30.04.06 marriage automatically made her start to exercise "EEA free-movement rights"? She was clearly here in the UK on a student visa.

Actually, I merely wanted to point to the fact that you "should" have 12 months after PR. Don't know what that means in practice.

However, I would understand "ending on or after 30 April 2006" in the following way. If the EEA national and the non-EEA family had arrived in the UK on 1 May 2000, assuming the 12 months from above are necessary and all other conditions for naturalisation are met, they could have applied on 30 April 2006 -- at least in theory. I understand the regulations to have changed retrospectively.

Now, for this case the question is if the she changed automatically over to the EEA route with her marriage, again retrospectively as it was before 30.4.2006 or if the fact that she had a valid student visa and only applied for the residence permit at a later date is the determining factor.

That's how I understand it but maybe I just overlook something.

[John]

..... the question is if the she changed automatically over to the EEA route with her marriage .....

That is the point. I think that prior to 30.04.06 nothing happened automatically. An application needed to be made. Thus I think that her right to stay in the UK continued to be her student visa, until the issue of the Residence Card.

Yes she could have applied for that immediately following the marriage, but in fact there was a delay.

[Kitty]

I am trying to advise someone on a similar situation - can anyone help to clarify the requirements for the following situation:

EEA national and non-EEA spouse married in the UK in 2002 and both got family permit in 2003, expiring on 12 June 2008.

Both have now been living permanently in the UK for over 5 years in the exercise of treaty rights - am I right to think they both now have automatic permanent residence even without EEA3/EEA4 applications, based on Regulations 15 of the Immigration (EEA) Regs?

In addition the non-EEA partner would like to apply for Citizenship if possible. Can he apply for citizenship straight away without having to go through the EEA procedures? My understanding is that having lived in the UK since 2002 in the exercise of treaty rights as a family member he has acquired enough time here to go for citizenship if he wants.

Help with this much appreciated

[John]

Both have now been living permanently in the UK for over 5 years in the exercise of treaty rights - am I right to think they both now have automatic permanent residence even without EEA3/EEA4 applications, based on Regulations 15 of the Immigration (EEA) Regs?

Yes! However whilst it is absolutely not compulsory especially the non-EEA spouse might want to make application on form EEA4, to get official written confirmation of their status, in order to cut out any problem proving that they do indeed have such PR.

In addition the non-EEA partner would like to apply for Citizenship if possible. Can he apply for citizenship straight away without having to go through the EEA procedures? My understanding is that having lived in the UK since 2002 in the exercise of treaty rights as a family member he has acquired enough time here to go for citizenship if he wants.

I do not think so. PR status acquired on 12.06.08 and PR status needed for at least one year before Naturalisation, unless the person is married to a British Citizen. Also a pass certificate from the Life in the UK Citizenship test will need to be supplied when that application is made.

Arrh, wait a minute, prior to the 5-year Residence Card, what was held? Was that a one-year EEA Family Permit? If so, when was the UK first entered using that EEA Family Permit?

[Kitty]

Thanks John! Very grateful for the clarification - I have been reading through the Naturalisation guidance and have repeatedly been misreading the 12-month requirement (EU stuff always makes my head spin).

I think he came to the UK first as a student, so the EEA clock probably does only start to run from 2003, although I will check.

PR now and citizenship in 12 months seems to be what is needed.

The PR process seems to be taking ages at the moment - any guidance on whether it's useful to do EEA3 and EEA4 for both parties and if that lenghtens or shortens the process?

[BBQrabbit]

Thanks all of you!

I've really known much more than before indeed. I didn't realise before that the rule changed from 04.30.06 would lead such a big difference.

But anyway, seems that many people are complaining the process of PR application would take ages. Thus, can I ask if it is better to submit an application earlier (such as a few months earlier before the 5 year-treaty rights complete)? I mean to queue there to save time.

Thanks!