There are a number of requirements an applicant must meet in order to qualify for naturalisation as a British citizen, including having lawfully resided in the UK for five years (or three years if married to a British citizen) prior to making the application. Time spent in the UK in breach of UK immigration law will not count towards this qualifying period.
It has long been held by the Home Office that EU nationals physically present in the UK but not exercising Treaty Rights i.e. those without a right of residence under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), are in breach of UK immigration law. In order to be exercising Treaty Rights in the UK a person must either be a qualified person i.e. an EU national who is a worker, student, self-employed, self-sufficient, retired or incapacitated person (as defined in the EEA Regulations), or the family member of a qualified person.
In order to qualify for Settled Status (Indefinite Leave to Remain) under the EU Settlement Scheme, an applicant does not need to provide evidence of having previously exercised Treaty Rights in the UK but instead must simply evidence their presence in the UK for the requisite period.
On 15 May 2020, the Home Office released an updated nationality policy which specifies that where an EU national holding Settled Status is applying for naturalisation as a British citizen, they will need to provide evidence that they were in the UK lawfully under the Regulations for any period of the five (or three) year qualifying period before they held Settled Status. EU nationals who have been issued with a document certifying Permanent Residence will not need to provide evidence that they were in the UK lawfully, provided their permanent residence has not lapsed (e.g. by being outside the UK for more than a continuous two-year period).
It is not uncommon for EU nationals to have been resident in the UK without exercising Treaty Rights and therefore unknowingly not having a right to reside under the EEA Regulations. In the past EU nationals who were studying in the UK or who were self-sufficient in the UK have been caught out by the requirement to have comprehensive sickness insurance. The option to acquire Settled Status under the EU Settlement Scheme therefore came as a relief for many EU nationals who were previously unable to obtain Permanent Residence under the EEA Regulations due to lack of evidence proving their exercise of Treaty Rights.
The Home Office policy suggests that where an applicant was not residing in the UK in accordance with the EEA Regulations, there may be some scope for discretion but an applicant will need “to provide sufficient evidence to justify discretion being exercised in their favour”. As a result of the changes to Home Office policy, applications for naturalisation by EU nationals may be more complicated and some EU nationals will be prevented from applying for naturalisation as a British citizen until they have held Settled Status for five years (three years in the case of an EU national married to a British citizen).
Please note the above update to Home Office policy will also impact naturalisation applications for family members of EU nationals who hold Settled Status in the UK.
Gherson has over 30 years’ experience in UK immigration and nationality law. Should you require expert advice and assistance with your application for British citizenship, please do not hesitate to contact us
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
Solicitor in our Corporate & Complex Teams