Updates made to the Home Office’s policy guidance on naturalisation applications appear to make it more difficult for some EEA citizens to become British citizens. We review the changes that have been made.
Once an individual is free from immigration restrictions they may consider applying to naturalise as a British citizen.
One of the requirements for this application is that the applicant must have been lawfully resident in the UK for a least five years (or three if married to a British citizen). Another requirement is that they must not have been in the UK in breach of UK immigration laws during this time.
Changes to the guidance
The naturalisation policy guidance is the Home Office’s interpretation of the requirements that British citizenship applicants must meet in naturalisation applications. This document was updated on 15 May 2020 to include the following:
An EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK and Islands when they apply to the EU Settlement Scheme will be eligible for settled status… However, this grant of settled status… will not confirm that they were here lawfully under the EEA Regulations during that time… You may therefore need to request further information from the applicant to demonstrate this’.
Qualified Person vs EUSS
EEA citizens have been able to reside in the UK and obtain permanent residence on the basis of exercising their treaty rights as a Qualified Person. To be considered a Qualified Person, the EEA citizen must have been:
- employed
- self-employed
- a student with comprehensive sickness insurance
- self-sufficient with comprehensive sickness insurance
On account of the UK leaving the EU, the UK government introduced the EU Settlement Scheme (EUSS). In order to obtain settled status (akin to permanent residence) through this scheme, it is only necessary for EEA citizens to demonstrate they have been resident in the UK for five years. They do not need to show that they have been a Qualified Person during that time.
What the policy guidance update confirms is that although being a Qualified Person is not necessary for the sake of the EUSS application, it is necessary to demonstrate, where relevant, that EEA citizens have been Qualified Persons during their UK residence in order to naturalise as British citizens.
This is likely to have the biggest impact on people who have studied or been self-sufficient in the UK but have not held acceptable comprehensive sickness insurance during that time.
Discretion
The Home Office does have the discretion to grant an application to naturalise as a British citizen, even where there is concern that the applicant has not been lawfully resident during the relevant period. The guidance states that:
when considering such applications you should take into account all the facts surrounding such a breach and make a full assessment about whether discretion should be exercised in their favour.
For example, if ‘the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour’.
Any period of residence a person has in the UK since obtaining pre-settled or settled status will be considered as lawful residence and no further evidence of being a Qualified Person would be required for that time.
How we can help
So far, despite the change, all applications we have filed for our EEA clients to become British citizens have been successful. If you have concerns about your eligibility to naturalise as a British citizen or would like advice on how to present your application we would be delighted to assist you.
For further information, please get in touch.
