Following the Brexit vote the UK introduced the EU Settlement Scheme (“EUSS”) to allow EU citizens to acquire Settled Status (indefinite leave to remain).
As of April 2021, 2,683,700 grants of settled status had been made. Of those, many will go on to apply for British citizenship, with data showing EU nationals now account for 27% of all citizenship applications compared with 12% in 2016.
We look at the most common problems EU nationals may face when applying for British citizenship based on our experience of dealing with these applications.
Meeting the lawful residence requirement
Under the EUSS, EU nationals are eligible for settled status on proof of 5 years’ continuous residence in the UK.
To acquire settled status the applicant does not have to establish that they undertook any particular activity during this period (known as exercising their EU treaty right to reside).
Proof of continuous presence in the UK in the 5-year period will generally suffice to ensure a grant of settled status.
The rules on residence get more complicated where an EU national seeks to naturalise as a British citizen.
Why? Because under the British Nationality Act 1981, an applicant seeking British citizenship must have been lawfully resident in the UK during the 3- or 5-year qualifying period before the application date.
But settled status under the EUSS does not confirm that a holder was lawfully resident during the relevant period for nationality purposes: it merely confirms that they have been in present in the UK for the required time under the EUSS.
Showing lawful residence under the old free movement rules
Until the end of the Brexit transition period, EU nationals could reside lawfully in the UK in accordance with free movement principles if they were undertaking certain activities whilst they were here.
These activities included working (including self-employment), studying, or (for limited periods) looking for work with a genuine chance of being engaged. It was also possible to be considered to be exercising treaty rights if an individual could show that they were financially self-sufficient.
Further, EU citizenship applicants relying on previous exercise of treaty rights as students or of being financially self-sufficient persons were also technically required to hold Comprehensive Sickness Insurance (CSI) (otherwise known as health insurance) in order to be lawfully present in the UK.
Where individuals relying on time as self-sufficient persons or on time as students did not hold CSI during the periods relied upon, the Home Office is currently treating these periods of residence as unlawful.
Approach for those without CSI
Home Office policy issued to caseworkers includes a discretion to waive the requirement in certain cases, although provides limited detail as to the circumstances in which such discretion might be applied:
A person may also be in breach [of immigration laws] if they have not complied fully with all the requirements of the route they are on. Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. 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.’
The policy provides examples of where discretion may be exercised including where
‘…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.’
In our experience of making these applications it will usually be advisable to provide an explanation of why CSI was not held at the relevant times, and the reasons for this, and to ask for discretion to be exercised in your favour.
Meeting the good character requirement
Where the residence requirement is met with or without the exercise of discretion, there is then a separate test applied in assessing whether an applicant meets the good character requirement.
To successfully naturalise as a British citizen, an applicant must also meet the ‘good character’ requirement under the British Nationality Act 1981.
An EU national’s naturalisation application may be refused if within the previous 10 years (or the applicant’s entire period of residence, whichever is shorter) there was a failure to comply with the requirements of immigration law.
A failure to comply with UK immigration law would include EU nationals who were students or self-sufficient people but who resided in the UK without CSI in the 10 years prior to applying for citizenship.
EU nationals who meet the residence requirements may therefore find they fall foul of the good character requirement as a result of scrutiny of their legal status in the preceding decade.
We find that this commonly happens with EU students who have never held CSI and who arrived in order to study (where holding health insurance was a requirement), and then moved into employment (where it was not).
Approach in the application
As with the residence test, there is discretion afforded to decision makers when considering a lack of CSI:
If a person did not have CSI, you must consider why they did not have it. Where a person has been granted ILR under the EUSS but has been in breach of the EEA Regulations 2016 due to a lack of CSI you must consider whether it is appropriate to exercise discretion in their favour.
We would therefore suggest a similar approach to that outlined above, where a full explanation is provided as to why CSI was not held, and to ask for discretion to be exercised.
Providing travel history
One of the biggest pain points for anyone applying for British citizenship is the requirement to provide a list of all of their absences from the UK over their relevant qualifying period (usually 5 years leading up to the date of the application).
The application form requires applicants to input the date they left the UK, the date they returned, the destination, and the reason for the travel.
The form – at the time of writing – allows for 30 trips to be inputted, although applicants are required to provide any additional trips in a separate document and submit this with their supporting documents.
This task is particularly onerous for EU nationals – and really for anyone who has been permitted to us the e-gates at border control in recent years – because they do not generally receive stamps in their passports showing dates of entry and exit.
For regular non-EU travellers, the task can still be daunting, but at least all of the information is usually (a) available and (b) all in one place.
Approach in the application
When advising clients of this requirements it is regularly met by a sharp intake of breath, and occasionally some finger-wagging.
For EU nationals for whom travel is a part of their job, or who have frequently journeyed abroad, the task of tracking down the dates of each trip over the last 5 years can be nigh-on impossible.
Many clients assume that the Home Office holds a record of their comings and goings from the UK and make an application for a copy of their records.
However, in our experience, disclosure of a Subject Access Request file usually contains only a partial history of entry and exit data.
Unfortunately the only solution is to keep track of absences throughout the qualifying period, or to make all reasonable efforts to complete an accurate schedule of trips in any given application using flight tickets and other similar evidence (although note that this evidence does not have to be provided with the application).
For any trips for which an applicant is unsure, an explanation should be given (in the form, or alternatively in a covering letter).
If you would like to have your application reviewed prior to its submission then please consider booking a one off consultation.