February 18, 2021

The pathway to British citizenship for European nationals in the UK


Page contents

How do you naturalise as a British citizen?
Overview of residency
Proving you are settled
Not married to a British citizen
Those married to a British citizen
Length and legality of residence
Length
Legality
Absence during the qualifying period
Absences in the final year
Absences over the whole three/five qualifying years
Those who have not yet reached five years’ residence
Good character requirement

Ever since the Brexit vote in June 2016, EU citizens in the United Kingdom have been turning their attention to applications for British citizenship. Foreign nationals who have been living in the UK for five years can apply to “naturalise” as British — but there are other requirements which can complicate things.

How do you naturalise as a British citizen?
The main requirements to naturalise as a British citizen are that the applicant must be:

18 or over
of “good character”
have an intention to continue to live in the UK
meet the knowledge of English and life in the UK requirements
meet the residency requirement
Of these, it is often the residency requirement which causes the most confusion and the most problems. This article will consider residency in detail, as well as touching on the good character requirement due to recent issues with Comprehensive Sickness Insurance.

Overview of residency

There are three parts to the residency requirement:

Proving you are settled
Length and legality of residence
Level of absence during the qualifying period
Because of the way that EU law and British nationality law work, there are quirks to each of these requirements which EU citizens interested in naturalising should be aware of. In particular, whether you are married to a British citizen or not makes a difference and whether you applied for permanent residence or settled status can also make a difference.

Proving you are settled
Before applying for British citizenship a person must be legally settled in the UK. This is sometimes referred to as “being free of immigration restrictions”. There are two ways for EU nationals to achieve this:

Possessing a document certifying permanent residence under EU free movement law. This must have been issued before 31 December 2020 and you must make your citizenship application before 30 June 2021; or
Obtaining settled status under the EU Settlement Scheme.
Although the UK left the EU on 31 January 2020 and the transition period came to an end on 31 December 2020, certain aspects of EU free movement law continue to apply until 30 June 2021 (the end of the ‘grace period’). Until then, people who already have a permanent residence document can continue to use this to apply for citizenship.

It is no longer possible to apply for a document certifying permanent residence. If you do not already have one, you must apply for settled status.

It is also important to remember that merely applying for citizenship does not give you any particular residence rights under UK immigration law. If you have applied for citizenship based on a permanent residence document you must still apply for settled status before 30 June 2021. Someone who has only a permanent residence document would be living in the UK unlawfully after that date. Switching to settled status would only be unnecessary if you have been granted citizenship, and attended your citizenship ceremony, by 30 June. But given current decision-making timescales and delays arranging ceremonies due to COVID-19, this is unlikely.

Once settled, the rules on when you can apply for citizenship are different depending on whether you are married to a British citizen or not. The rules are slightly easier to meet if you are married to a British citizen; we’ll start with the rules for those who are not.

Not married to a British citizen

Someone who is not married to a British citizen needs to show that they have been settled for at least one year before applying for citizenship.

Applicants relying on permanent residence can backdate their permanent residence status and apply for citizenship as soon as they receive their permanent residence document. That is because permanent residence is acquired automatically. A permanent residence document is required for the citizenship application, but does not grant the status. It recognises a status which was automatically acquired at some point in the past. That means that anyone with a permanent residence document can apply for citizenship immediately, so long as they have acquired the status of permanent residence at least one year previously.

By contrast, settled status is effective only from the day it is granted. That means having to wait 12 months from getting settled status to apply for citizenship.

After 30 June 2021, it will no longer be possible to rely on a permanent residence document and waiting 12 months after being granted settled status will be the only way to meet this requirement.

Those married to a British citizen
If you are married to a British citizen then you do not need to have been settled for one year before applying for citizenship. The advantage of relying on a permanent residence document, which is that it allows you to backdate your status to a date one year in the past, is therefore unnecessary for those married to a British citizen.

An application for settled status followed by an immediate application for citizenship is the best course of action for anyone who is married to a British citizen and has lived in the UK for over five years.

Length and legality of residence
Now let’s look at the second element of the residence requirement: length and legality of residence.

Length
The residence periods are follows:

Anyone who is not married to a British citizen must have resided in the UK for five years prior to the date of their citizenship application.
Anyone who is married to a British citizen must have resided in the UK for three years prior to the date of their citizenship application.
This three-year residence period does not affect the separate requirement to prove that you are settled. In practice, everyone who wants to become a British citizen needs to have lived in the UK for five years, as it takes that long to get settlement.

This quirk is due to British nationality law being drafted in 1981, at a time when it was possible to become settled in less than five years. Now virtually all routes to settlement require at least five years’ residence.

The residence period is always counted backwards from the date of application; it is not possible to rely on a historic period of residence. The period must start on a day you were in the UK. This means that you need to make sure that you were in the UK exactly three or five years before you apply.

Example
Samantha is not married to a British citizen. She applies for citizenship on 15 April 2020. The residence period for the purposes of her citizenship application is 16 April 2015 to 15 April 2020. She must have been in the UK on 16 April 2015.

Legality
During the three/five year qualifying period you must not have resided in the UK in breach of the UK’s immigration laws.

You could be forgiven for assuming that EU citizens, with the right to freedom of movement, were unlikely to breach the UK’s immigration laws. But EU free movement law always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you required Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance was widespread.

The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to this rule not being applied to applications under the Settlement Scheme itself.

But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement would be applied to citizenship applications. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance or a European Health Insurance Card issued by their country of nationality during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.

Can the Home Office do this?
This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).

This requirement will not cause a problem for:

People who have a permanent residence document already;
People who were granted indefinite leave to remain before their country joined the EU, or before permanent residence was introduced;
People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
People who lived in the UK for five years whilst under the age of 21, whose parent worked in the UK continuously during that same five year period. A person in this category will also have acquired permanent residence (again a historic period can be relied on);
People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.
This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.

The Home Office recognises this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:

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 assess[m]ent about whether discretion should be exercised in their favour.

One of the examples of when it may be appropriate to exercise discretion is:

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.

It is unclear what the last bit is supposed to mean. Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone! Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.

Absence during the qualifying period
If the person applying for naturalisation has been out of the UK for too long, their application will be rejected.

The basic rule, set out in Schedule 1 to the British Nationality Act 1981, is that the applicant must not have been outside the UK for more than 270 days in total over the three-year period for spouses, or 450 days over the five-year period for non spouses, including no more than 90 days in the final year in both cases.

The Home Office will examine both the three/five year qualifying period and the final year before the application separately.

Absences in the final year
The basic rule, as we have seen, is that the applicant cannot have been outside the UK for more than 90 days in the 12 months up to the date of their application. So if applying in July 2021, your absences between July 2020 and July 2021 must fall below 90 days.

The Home Office can, in certain circumstances, grant citizenship even where the 90 day threshold has been exceeded. This can only be done where the “future intentions” requirement has been met. This is the third bullet point in our summary of the naturalisation requirements right at the start of this post: to qualify for citizenship you must intend to make the UK your home, or if you have more than one home the UK must be your principal home. This requirement is usually met without difficulty, but significant absences during the three or five year residence period or close family living abroad can cause the Home Office to doubt an applicant’s future intentions.

The table below provides a guide for when the Home Office will consider disregarding excessive absences:

Absences Home Office approach
90 to 100 days absence in final year Home Office guidance states that absences of up to 100 days during the final year of the qualifying period will normally be disregarded.
100 to 180 days absence in final year Discretion may be exercised if the total number of absent days over the 3/5 year qualifying period is not exceeded, and the applicant “demonstrates strong links through the presence of family, employment and their home in the UK”.
100 to 180 days absence in final year Discretion may be exercised even if the total number of absent days over the 3/5 year qualifying period is exceeded if the applicant has “demonstrated that they have made this country their home by establishing a home, employment family, property and finances in the UK” and where the absence is justified by Crown service, or “by compelling occupational or compassionate reasons, including inability to travel because of a global pandemic”.
Over 180 days absence in final year (but the absence threshold across the 3/5 year qualifying period is not exceeded) Discretion may be exercised if the applicant has demonstrated that they have made the UK their home.
Excess absences for final year and qualifying period Discretion may be exercised only in exceptional circumstances and where the applicant has demonstrated that they have made the UK their home.
As the table shows, assuming the future intentions requirement is met, the Home Office will usually grant the application where the absences are under 100 days. They will also consider granting an application where absences are between 100 and 180 days. The decision-maker will look at whether the absence threshold for the three/five year residence period (see below) has been met, consider the reason for the absences, and assess the strength of your connection to the UK to determine whether you should be granted citizenship, despite your excessive absences.

If your absences are over 180 days in the year before you apply, and you also fail to meet the threshold over the three/five year residence period, your application will only be granted in “exceptional circumstances”. It is incredibly difficult to convince the Home Office that such circumstances exist.

Absences over the whole three/five qualifying years
For the second period examined, as with the length of the residence periods, the number of absences permitted depends on whether or not you are married to a British citizen.

Not married to a British citizen

Those who are not married to a British citizen need to show that they have not been absent from the UK for more than 450 days during the five year residence period.

Again the Home Office can, in certain circumstances, grant citizenship even where this threshold has been exceeded. The table below shows how the Home Office will consider such applications:

Absences Home Office approach
450 to 480 days total absence Home Office guidance suggests that absences of up to 480 days will normally be disregarded.
480 to 730 days total absence Discretion may be exercised where the applicant has been resident for the previous seven years, without substantial absences within the first of those seven years (the two years outside the normal qualifying period).
730 to 900 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous eight years, without substantial absences within the first three of those years (the three years outside the normal qualifying period).
480 to 900 days total absence Discretion may be exercised to waive the requirements in the following circumstances:
– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK),

– exceptionally compelling reasons of an occupational or compassionate nature to justify the application being granted, such as a firm job offer where British citizenship is a statutory or mandatory requirement, or

– the excess absences were because the applicant was unable to return to the UK because of global pandemic.

For any exercise of discretion above 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If your absences are over 900 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.

Those married to a British citizen

Those who are married to a British citizen need to show that they have not been absent from the UK for more than 270 days during the three-year residence period.

Absences Home Office approach
270 to 300 days total absence Home Office guidance suggests that absences of up to 300 days will normally be disregarded.
300 to 450 days total absence Discretion may be exercised where the applicant has been resident for the previous four years, without substantial absences within the first of those four years (the year outside the normal qualifying period).
450 to 540 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous five years, without substantial absences within the first two of those years (the two years outside the normal qualifying period).
300 to 540 days total absence Discretion may be exercised to waive the requirements in the following circumstances:
– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK),

– exceptionally compelling reasons of an occupational or compassionate nature, such as a firm job offer where British citizenship is a statutory or mandatory requirement, or

– the excess absences were because the applicant was unable to return to the UK because of global pandemic.

For any exercise of discretion over 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If absences are over 540 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.

Those who have not yet reached five years’ residence
If you will reach five years’ residence before 30 June 2021, then you can apply for settled status once you have reached the five year threshold. If you will not reach five years’ residence until after 30 June 2021 you must apply for pre-settled status. Once five years has been reached you can then apply for settled status and then citizenship (immediately if you are married to a British citizen or after a year if you are not).

Good character requirement
As part of the good character requirement, the Home Office will consider whether you have breached immigration law. They will look at your entire period of residence in the UK, or the last ten years; whichever is shorter. To avoid a breach of immigration law, EU nationals must show that their residence has been in accordance with EU free movement law, as implemented in the UK by the Immigration (EEA) Regulations 2016 (or their 2006 predecessor).

As noted above, for your residence to be lawful you must have been working, looking for work, studying, or self-sufficient. If studying or self-sufficient, you must have held Comprehensive Sickness Insurance (CSI).

As with the lawful residence requirement above, this will not cause a problem for people who were granted indefinite leave to remain over ten years ago, people who have already been issued with a document certifying permanent residence, or people who have been continuously working during their UK residence.

But if you have a period of study or self-sufficient falling within the last ten years, or there are lengthy gaps in your employment, you may need to consider the CSI requirement more carefully.

If you can establish that the CSI requirement does not apply to you, for instance because you have been working, it is still necessary to submit evidence of this with your citizenship application (e.g. P60 certificates). If you can show that you were engaged in genuine and effective work (even part-time or seasonal work, or work during your studies) during any five year period, you will not need CSI. If relying on a historic five year period of employment, you will also need to show you have not been absent from the UK for a continuous period of two years since acquiring permanent residence.

It is not necessary to have a permanent residence document in order to show that the CSI requirement does not apply, as permanent residence is acquired automatically.

If the CSI requirement does apply to you, the fact that you did not hold private health insurance is not necessarily fatal. The requirement can be met by showing you held a European Health Insurance Card during the period of study or self-sufficiency (providing this was issued by your country of nationality, rather than the UK). It is also sometimes possible to show that your home country would have covered the cost of healthcare if you had become ill (this can be done by obtaining Form S1 or Form E104 from your home country).

If all else fails, you can ask the Home Office to exercise discretion and grant your application notwithstanding the breach of immigration law due to lack of CSI. As noted above, the criteria for the exercise of discretion are poorly defined. If there is no pressing need to apply for citizenship now, it may be better to wait until the requirement is met (i.e. once your period of studying or self-sufficiency falls outside of the last ten years).

February 17, 2021

People with pre-settled status can sponsor family members under Appendix FM


Since 31 December 2020, the list of people who can sponsor a family member under Appendix FM to the Immigration Rules has included those who are “in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3(d)”.

As the name suggests, GEN 1.3(d) is found in the “General” section of Appendix FM. It says:

References to a person being “in the UK with limited leave under Appendix EU” mean an EEA national in the UK who holds valid limited leave to enter or remain granted under paragraph EU3 of Appendix EU to these Rules on the basis of meeting condition 1 in paragraph EU14 of that Appendix.

Condition 1 of paragraph EU14 of Appendix EU is what people have to satisfy to be granted pre-settled status under the EU Settlement Scheme. The upshot is that people with pre-settled status can now use Appendix FM to sponsor family members. This applies to all family visa categories covered by Appendix FM, even “parent of a child” applications, as pre-settled status is now a qualifying status for the child’s other parent where the child does not live with the applicant.

There are also sponsorship provisions for Turkish workers and businesspeople granted limited leave under Appendix ECAA Extension of Stay, but only for partner visas.

January 28, 2021

Britain closes the door on unaccompanied child refugees

Unaccompanied child refugees will no longer be given sanctuary in the UK, the immigration minister has said – sparking claims that Britain has “turned its back” on vulnerable youngsters in need of protection.

The Dubs Amendment, passed in May 2016 by David Cameron’s government in the wake of an increase in refugees arriving in Europe during the Syrian war, required ministers to relocate and support asylum-seeking children from the continent.

But Chris Philp, the immigration minister, said that although the Home Office took the “responsibility for the welfare of children very seriously”, there would no longer be a legal route to Britain for these minors.

The only children still able to seek help in the UK are those who have relatives in Britain, who Mr Philp said would be able to come to Britain through the existing immigration rules.Campaigners warned that the decision meant hundreds of vulnerable children would instead turn to people smuggling gangs to assist them with travelling to Britain, placing them at greater risk of trafficking.

Read more
75 cross-party MPs call on ministers to take in more child refugees
75 cross-party MPs call on ministers to take in more child refugees
The Dubs scheme was initially envisaged to offer settlement to 3,000 child refugees, but it was capped at 480 places. In May 2020, it emerged that this quota had been filled.

NGOs and cross-party MPs have since been calling on ministers to introduce a new, similar scheme to ensure that Britain is playing a role in protecting lone minors and that vulnerable children are not pushed into the hands of traffickers.

Last month, more than 70 cross-party MPs, including seven Conservative politicians, called on the government to provide “life-saving” sanctuary to unaccompanied child refugees in Europe – particularly those stranded on Greek islands, where a large fire on Lesvos in September left hundreds of unaccompanied children displaced.

There has also been mounting pressure on ministers to offer safe passage to child refugees in northern France, where charities say there are currently nearly 288 lone minors who are hoping to reach Britain but do not have relatives in the country.

However, in response to a question from Labour MP Alex Sobel asking what the Home Office is doing to help relocate unaccompanied children in the refugee camps on the Aegean Islands, Mr Philp said on Friday: “The Home Office takes its responsibility for the welfare of children very seriously.

“However, responsibility for asylum seekers and refugees in EU member states lies with the authorities of the safe EU country in which they are present in accordance with their international obligations.”

The immigration minister said asylum-seeking children in Europe would still be able to join family members in the UK – but said nothing about youngsters who do not.

He said it was “important that we focus on ensuring that we can care for those who are already here before we agree to taking more children”, and claimed that resettling refugees from safe European countries created a “pull factor” for refugees to travel to Europe.

Mr Philp added: “The government is prioritising resettling vulnerable refugees direct from dangerous conflict zones rather than those who have often paid people smugglers to reach other safe European countries.”

Read more
Child refugees in Calais face unprecedented risk of abuse
Child refugees in Calais face unprecedented risk of abuse
Why family of refugees is risking everything to cross Channel
Why family of refugees is risking everything to cross Channel
Young men trying to cross Channel explain why they want to reach UK
Young men trying to cross Channel explain why they want to reach UK
The UK’s resettlement process, which transfers refugees directly from conflict zones to Britain, is currently up in the air, with the Home Office refusing to confirm when it will start a new programme that was due to start in May 2020.

Mr Philp’s claims that local councils were at capacity has been disputed, with the charity Safe Passage saying at least 25 UK councils had pledged over 1,400 places for child refugees in Europe, so long as the government provides support and a safe and legal route for these children to arrive.

Lord Alf Dubs, who campaigned for the Dubs Amendment in 2016, told The Independent Mr Philp’s response was “bitterly disappointing but I’m afraid not totally surprising”.

“They kept the door slightly open by saying they couldn’t find any more local authority places, but now to hear them saying it’s shut altogether, that is rather more definitive than before,” he said.

“I am surprised at the bluntness with which they’ve said it. It’s all part of a chain of events that’s making things harder for refugees.”

Lord Dubs added: “Obviously what [unaccompanied minors in Greece] will do is they’ll try to make their way across Europe and get to a country where they’ll feel they have more chance, whether that’s Germany, Sweden or the UK.

“The ones who have got to Calais will get in touch with traffickers and try and get to the UK in the most dangerous way possible, risking their lives. Whether we’re in the EU not, we should play our part in sharing responsibility for these kids.”

Cllr Kevin Bonavia, cabinet member for refugees at Lewisham Council, which has said it is willing to take in more child refugees with appropriate government support, described the minister’s response as “deeply depressing” and accused the government of showing a “callous disregard for the plight of children in the refugee crisis”.

“And once again the government makes the shameful claim of the so-called ‘pull factor’ for refugees. Children running away from war or persecution will always do so – the real question is how. Cutting off legal safe routes to sanctuary simply means pushing them into the hands of traffickers and all the horrors that come with that,” he added.

Watch more
Councils refute minister’s claim UK has no space for child refugees
Councils refute minister’s claim UK has no space for child refugees
Beth Gardiner-Smith, chief executive of Safe Passage International, said: “Children alone in Europe are sleeping rough in the snow, in derelict buildings and tents in overcrowded camps. Leaving the EU doesn’t mean we must turn our back on these children.

“We urge the government to continue to provide sanctuary to some of the most vulnerable unaccompanied refugee children in Europe, demonstrating solidarity with our closest neighbours, and providing global leadership rather than retreating from our international commitments.”

Josie Naughton co-founder and chief executive of charity Choose Love, said that while leaving the EU could have been an “opportunity to turn the UK into a beacon for human rights”, it instead appeared as though the government was using it as an opportunity to “turn its back on the weakest in society”.

Responding to the criticisms, Mr Philp said Britain had been the top resettlement country in Europe over the past five years, but that its priority was resettling those in dangerous conflict zones.

“In 2019 we received more asylum applications from unaccompanied asylum-seeking children than any other European country, including Greece,” he added.

“We’re fixing the asylum system to make it firm and fair, providing compassion to those who are fleeing oppression or tyranny. That’s why we’re honouring our commitment to those refugees who’ve been invited to the UK, and why we will roll out a new global resettlement scheme which will welcome people through safe and legal routes.”

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