Change to naturalisation policy guidance and its significant effect on individuals with immigration status under the EU Settlement Scheme (EUSS)
5 June 2020
Individuals who hold settled status under the EUSS may be eligible to apply to naturalise as a British citizen, subject to meeting all of the mandatory requirements. One of these requirements is to have resided in the UK during the relevant qualifying period (either three or five years – depending on whether you are married to a British citizen) without ‘at any time’ being in ‘breach of the immigration laws’. Previously, applicants who held settled status were permitted to simply provide evidence of their settled status in order to satisfy this requirement, as five years’ residence in the UK is required to obtain this status.
However, the Home Office recently updated its policy guidance which as a result will make naturalisation applications more difficult for many EU nationals. Now naturalisation applicants holding settled status and relying on a period of residence in the UK where they did not hold immigration permission under the EUSS will now be considered to have breached the immigration laws if they did not comply with additional requirements under the EEA Regulations. This is despite the fact that they will not have been required to satisfy the EEA Regulations for their EUSS application(s).
Accordingly, individuals who have been in the UK under the EEA Regulations (between 30 April 2006 and the date of grant of EUSS status) and were not previously issued with a document certifying their permanent residence under the EEA Regulations will now be required to submit evidence demonstrating that they were a ‘qualified person’ throughout the relevant period in the UK as part of their naturalisation application, i.e. exercising Treaty rights as either a:
- job seeker – e.g. copies of job applications, invitations to job interviews;
- worker – e.g. P60s, payslips;
- self-employed person – e.g. HMRC self-assessments, business accounts;
- self-sufficient person – e.g. bank statements; or
- student – e.g. evidence of enrolment, bank statements.
Please note that the examples of evidence detailed above are not exhaustive and the documents required will vary depending on the specific situation.
Notably, under the EEA Regulations, self-sufficient individuals and students must show that they held comprehensive sickness insurance (CSI) cover in the UK for themselves and any family members. The updated guidance confirms that individuals who did not hold CSI cover are considered to have been in the UK in breach of immigration laws – however the guidance does seem to imply that there may be discretion to waive this requirement if the applicant can ‘provide sufficient evidence to justify discretion being exercised in their favour’. It remains unclear what type and amount of evidence would be sufficient.
Applicants will not be required to demonstrate that they were exercising Treaty rights for the period from their grant of pre-settled or settled status under the EUSS.
The Home Office updated its Naturalisation by discretion guidance on 14 May 2020 to reflect these changes. However, the Guide AN (the guidance which naturalisation applicants are advised to read before preparing an application) is yet to be changed.
Our advice
In view of these changes, we would recommend that all individuals who intend to apply or already hold status under the EUSS, and who intend to eventually apply for British citizenship should continue to retain evidence (as detailed above) which shows that they have met the EEA Regulations for the duration of the relevant qualifying period.
If you anticipate that you will experience difficulties with this, an alternative option could be to treat the grant of settled status as the start of the relevant qualifying period, by the end of which the applicant will only be required to submit evidence of their settled status. This option obviously has the downside of delaying the citizenship application.
We should be delighted to assist if you are unsure or have any queries as to:
- which strategy will work best for you;
- exactly what documents you will be required to retain;
- the impact of these changes on any planned application timeframes; and/or
- any other aspect of your EUSS application/application to naturalise as a British citizen.
For assistance with this or any other UK immigration query, contact your assigned LDI lawyer or enquiries@lauradevine.com.
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