Did you know that Eastern European nationals can count residency in the UK for the time before their countries joined the EU?
This post would be of
interest to Romanian, Polish and other A8 and EU2 nationals, considering an
application for permanent residency in the UK (or for British Citizenship if
they are applying straight for Citizenship without applying for permanent
residency first, which is allowed for the EEA nationals).
In the past, when
assessing eligibility for permanent residence under the European Regulations, we
could only count the time spent in the UK under the Regulations before a
country in question joined the EU. For example, Romania joined on 1 January
2007, so we would only count from then. Some migrants did reside in the UK
before that but on the visas under the Immigration Rules, such as a Work Permit
or the old Highly Skilled (HSMP) visa or a student visa.
The point is that residence under the EEA Regulations
derives from the European law while residence under the UK Immigration Rules
derives from the UK law. Normally, we can’t combine them! We could not use such
a combination until the The ECJ (European Court of Justice) case of
Ziolkowski. If an EEA national wanted to use his/her residence under the
Immigration Rules then he/she had to continue under the Immigration Rules, ie
as if there were no EEA Regulations (in other words, could not combine the UK
and EU law).
However, based on the Ziolkowski case, we can now count the time
spent in the UK before a country joined the EU, as long as the residence was
legal under the Immigration Rules.
Take example of a Romanian national who was working
in the UK on a work permit during 2005-2006. On 1 January 2007 Romania was
acceded to the EU and this person remained working in the UK, maybe applied for
a Blue Card (although in this example a Blue Card wasn't compulsory). Based
on the Ziolkowski judgement, the earliest point a Romanian national could apply
for permanent residency would be 5 years from 2005, ie 5 years from the commencement
of employment in the UK, which means in 2010 (and for British Citizenship in
2011). As you can see, this is not based on 5 years from 1 January 2007 when
Romania joined the EU.
Interestingly, this also applies to the family members
of EEA nationals but only if the family ,embers are also EEA nationals (ie ‘Romanian
married to Polish’, for example). Yet non-EEA family members can’t benefit from
the Ziolkowski judgement!
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 CPD website: www.1st4immigration.com/training
