Romanian/Bulgarian nationals: main issues when applying for Permanent Residency and British Citizenship

These are based on our experience as a London-based practicing immigration company.
Confusing ‘5 years of residency’ with the ‘5 years of exercising treaty rights in the UK’. First is a myth, latter is a compulsory requirement. All EU nationals, including Romanian/Bulgarian must show they have exercised Treaty rights in the UK for continuous 5 years, rather than just being in the UK for 5 years. Examples of exercising treaty rights: working, being self-employed; plus studying and/or being self-sufficient (in both cases applicants need private medical insurance). If there is a break in exercising treaty rights then you will not qualify for Permanent Residency and therefore, won’t qualify for Citizenship either (Citizenship is mainly based on qualifying for Permanent Residency).

In many cases we have to find a point where exercising treaty rights in one or more in the above activities became continuous. For example, counting from the date of start of the last job when there was a long break in employment before that, even if you worked for, say, 3 years before the break.

Breaks in work can only be solved by having a private medical insurance at the time (otherwise it’s a break which ‘re-starts the clock’). May sound a bit complicated but it means the following: if you were not working (as an employee or self-employed) then you will only be considered as exercising treaty rights if you had private medical insurance at the time.

Private medical insurance if officially called Comprehensive Sickness Insurance and basically means an alternative to using the NHS. This insurance is required for students and self-sufficient EU nationals, including Romanian/Bulgarian.

Time and time again we hear “I quit that job and was not working for  a few months. I had some savings left and I could support myself. Medical insurance? No, I did not need it, I was not using the NHS”. Well, it is not relevant if you did not need the NHS and did not use it. What matters is that for breaks in working you had insurance.

Likewise, it does not solve a problem if you now rush and buy this insurance because it will be valid from now. A bit like trying to get fire insurance when the house is already on fire.

Working ‘cash in hand’. This might have saved you on paying taxes but comes to bite right back. Since there is no official records of such work (HMRC did not know about that) it will not be counted as working. If you did not have the above private medical insurance then this will be a break in exercising Treaty rights.

Students who work before legally allowed. Unlike other EU nationals, Romanian/Bulgarian and now Croatian nationals can only work while studying when they have obtained a Yellow Card, not before that. So, if you happened to start working (while studying) before your Yellow Card was issued to you, that was illegal and won’t be counted as exercising Treaty rights as a worker (but studying will be counted if you had complied with the conditions for students, see below). This points does not apply to those who had work authorisation otherwise, before studying, for example, if you had a Blue Card and then started a new course, in this case a Blue Card allowed to work without needing a Yellow Card.

Students without comprehensive sickness insurance. From 20 June 2011 students from EU countries, including Romanian/Bulgarian, are considered as self-sufficient and must have private medical insurance while studying, otherwise it won’t be counted as exercising Treaty rights. The catch here is that even if you were studying before 20 June 2011 you still need to show you have had that insurance at the time, ie before or after 20 June 2011, ie for any time spent in the UK studying. This affected those who did not have insurance at the time because they 1) they did not know about it (most commonly) and/or 2) because it was not required at the time. Unfortunately, the changes were applied retrospectively.

There is an exception. If you obtained a Yellow Card as a student before 20 June 2011, without needing comprehensive sickness insurance (as it was not needed back then), then you can now be treated as if you had it. So, the changes from 20 June 2011 do not affect you. However, if you have never applied for a Yellow Card you need to show you had this insurance even before 20 June 2011. Also, if you had a Yellow Card as a student, then applied for a Blue Card to work and then returned to study again, then this exception only applies to the period of studies before the Blue Card.

Finally, thinking you can apply for citizenship after 5 years in the UK. Wrong! First you need to qualify for Permanent Residency, which requires 5 years of continuous exercising Treaty rights, as above. There is no obligation to apply for permanent residency but you must show how you qualified for it, when you apply for Citizenship. Then there is an extra rule of waiting for 12 months after qualifying for Permanent Residency because of the rule of being ‘Free from immigration restrictions for at least 12 months’. This effectively means at least 6 years in the UK. The only exception is those who are married to UK citizens - they don’t need to wait for a 6^th year.

There are also other issues but not enough space to cover them all. For example, those who stop exercising Treaty rights because of a maternity leave (or rather quitting a job and letting a non-EU spouse support financially) or those who have problems because their colleges were closed or courses cancelled. There are also some more examples of exercising Treaty rights, such as working but having an accident, these are less common cases, so we don’t cover them in this general post.

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CDP website: www.1st4immigration.com/training