On 12 November 2015, the British Nationality (General) (Amendment No. 3) Regulations 2015 introduced an additional step for EEA nationals who wish to naturalise as British citizens.
Before the changes, EEA nationals could submit evidence that they had exercised Treaty rights in the UK for 5 years and had resided in the UK for a further year, and this would suffice to prove that they had acquired permanent residence.
However, any naturalization application made by EEA nationals or their family members on or after 12 November 2015, must be accompanied by a certificate confirming they have obtained permanent residence.
As EEA nationals derive their rights directly from EU law, a permanent residence certificate is simply evidence of a right that already exists, and it is not constitutive of the right itself.
The 'document certifying permanent residence', which is called 'permanent residence card' for non-EU family members, is therefore unnecessary to prove residence.
However, if an EEA national wishes to naturalise, they now have to apply for a permanent residence document or their naturalization application will be rejected.
Two months after the coming into force of these new rules, it is clear that the additional step of applying for a permanent residence document has caused delays and confusion.
Many EEA nationals rushed to submit their naturalization applications before 12 November 2015, others however were unaware of the changes and were disappointment to find out that they had to put on hold their naturalization application in order to comply with the new rules.
The application form for a residence card, although not mandatory, requires disclosure of very detailed information and at 80 pages, it is lengthy and not always easy to navigate.
A fee of £65 is also payable to the Home Office to process the application, which should be decided within 6 months, although in practice can take longer.
It has been suggested that the introduction of the two-steps process might be unlawful. A pre-requisite to apply for naturalization is that the applicant has to be free from immigration restrictions, i.e. they have to have the right to reside in the UK indefinitely. Whilst for non-EU nationals this right is granted by the Home Office following a successful application for indefinite leave to remain, in the case of EU nationals, they automatically acquire permanent residence if they live in the UK for at least 5 years as qualified persons (i.e. exercising Treaty rights).
Therefore, they become free from immigration restrictions under EU law and should be eligible to apply for naturalization without the need to show their right of permanent residence by way of a document, which is not constitutive or their right.
It is possible that challenges to the lawfulness of the new naturalization rules will be brought, but for the time being the two-steps approach must be followed.