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12 October 2020

EEA nationals who want to naturalise as British may have to jump a further hurdle

4 mins

Further to the changes introduced on the naturalisation policy guidance, the government have now updated its good character policy for naturalisation. These changes will have a noticeable impact on applications for naturalisation from EEA and Swiss nationals who have obtained EU settled status through the EU Settlement Scheme (EUSS) in Appendix EU of the Immigration Rules, rather than permanent residence under the EEA Regulations 2016.

The EU Settlement Scheme allows EEA and Swiss nationals and their family members who are resident in the UK prior to 31 December 2020to obtain a UK immigration status needed to continue living and working in the UK after 30 June 2021. This also applies to future family members who join a resident EEA or Swiss national after 31 December 2020 where the relationship existed at that point and continues to exist. The EUSS is a cheap and frequently a quicker option than applying for permanent residence.  To qualify under the EUSS EEA and Swiss nationals only need to prove their identity and nationality, show that they were resident in the UK and Islands by 31 December 2020, and declare any criminal convictions.

If the EEA or Swiss citizen or their family members have 5 years’ continuous qualifying period of residence in the UK when they apply to the EUSS they will be eligible for settled status (provided they also meet any other relevant eligibility and suitability criteria).

EU settled status is not the same as permanent residence

However, this grant of settled status (also known as indefinite leave to enter or remain) will not confirm that the applicant was in the UK lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement under the EU Settlement Scheme.  This means that EEA or Swiss citizens with EU settled status who wish to naturalise as British citizens may have to prove that they have been lawfully in the UK, not only during their five years qualifying period but also for the past 10 years.  This contrasts with those who have a document certifying permanent residence under the EEA Regulations as they have already been assessed as meeting the EEA Regulations for the five years prior to the application and, normally, the Home Office will not go behind the grant of permanent residence.

The updated good character policy states that “in assessing whether a person has complied with immigration requirements over the previous 10 years, you [the decision-maker) must take into account whether they were subject to the EEA Regulations 2016 or the Immigration Act 1971 and whether they complied with the relevant requirements’.

The guidance also states that the decision maker has to consider whether on the balance of probabilities the applicant was in the UK for the qualifying period as a qualified person, such as a worker, student, self-employed, self-sufficient, retired or incapacitated person, or as the family member of such a person. 

The UK government’s view is that students and the self-sufficient are required to have comprehensive sickness insurance (CSI) or their residence is not considered to be lawful and they must have held it for ten years, not five years, in order to qualify for citizenship.  This also applies to those who have a document certifying their permanent residence and were required to have CSI; they must prove they had this for the ten years leading to the application (and not only during their 5 years qualifying period).  Unfortunately, many EEA nationals were completely unaware of the requirement to have CSI and thus cannot satisfy this requirement and, therefore, may have problems if they wish to naturalise as British citizens

What can be done?

All is not lost: the newly published guidance states that when considering applications Home Office caseworkers must take into account all the facts surrounding the breach and assess whether discretion should be exercised in the applicant’s favour.  The guidance specifically addresses where a breach is as a result of not meeting an “additional or implicit condition of stay” such as not having CSI and the applicant can provide sufficient evidence to justify discretion being exercised in their favour

What about EEA and Swiss citizens resident in the UK before 2006?

There is another ray of light:  permanent residence was a concept introduced in 2006.  There are many EEA and Swiss citizens who have been resident in the UK prior to 2006 who, provided they have not been outside the UK for too long after that date, will be free from time restrictions and are therefore in the UK lawfully.

This is not a straightforward area of law.  We advise that you take legal advice before making an application for naturalisation, as the application fees are not reimbursed if the application is unsuccessful. 

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