June 2, 2020

The pathway to British citizenship for European nationals in the UK

Since the Brexit vote in June 2016, many EU citizens in the United Kingdom are turning their attention to applications for British citizenship. Citizens of other countries 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 for people who are keen get their British passport as soon as possible.
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. 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 citizenship a person must be legally settled in the UK (referred to by lawyers as being “free from immigration time restrictions”). There are two ways for EU nationals to achieve this:

Obtaining a document certifying permanent residence under current EU free movement law. This will remain possible until 31 December 2020; or
Obtaining settled status under the UK government’s Settlement Scheme.

The settled status scheme opened to the general public in January 2019 and has become by far the most common way for EU citizens and their family members to secure their immigration status in the UK. In general the settled status option will be faster, easier and cheaper for those who just want to get their right to remain in the UK sorted out, but someone who wants to apply for British citizenship as soon as possible may still wish to apply for permanent residence.

This is because permanent residence can be backdated but settled status cannot, and for some applicants being able to backdate your proof of settlement means you can qualify for British citizenship sooner. A permanent residence application can also be used to resolve any potential issues with the legality of your residence (see Legality of residence below).

The rules on qualifying for naturalisation as a British citizen 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 free from immigration restrictions for at least one year before applying for citizenship. Under current EU free movement law, an applicant may be able to 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 someone who receives their permanent residence document can apply immediately, so long as they have acquired the status of permanent residence at least one year previously. Colin goes into more detail on this in a previous post.

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

Although the UK left the EU on 31 January 2020, EU free movement law will continue until 31 December 2020 (the end of the transition period). Until then, people will be able to make an application for a permanent residence document and use this to apply for citizenship. With that date fast approaching, and as yet no agreement to extend the transition period, time is running out to make use of the permanent residence route.

The requirements for permanent residence are more stringent than for settled status. You must have been working for a five-year period, which must have ended at least one year ago (this is to ensure the status can be backdated by 12 months, allowing you to apply for citizenship immediately). If you have not been working you would need to show that you have held Comprehensive Sickness Insurance, a requirement many people have had difficulty meeting in the past.

If you cannot meet the requirements for a permanent residence document but have lived in the UK for five years, then you would need to apply for settled status, wait one year, and then apply for citizenship. There is no problem doing this, and it would be simpler than the permanent residence route — just not as fast. You may, however, encounter problems showing that your residence in the UK has complied with UK immigration law (see below)
Those married to a British citizen

If you are married to a British citizen then you do not need to have been free from immigration restrictions for one year before applying for citizenship. The advantage of applying for 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.

As settled status is a simpler and faster process, 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.
eBook Naturalising as a British citizen: a guide

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 15 April 2015 to 15 April 2020. She must have been in the UK on 15 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 European citizens, with the right to freedom of movement, are unlikely to breach the UK’s immigration laws.

However, EU free movement law has always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you require Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance is 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 the legality rule not being applied in the Settlement Scheme context.

But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement will be applied in the citizenship context. 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 permanent residence documents already;
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 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 of 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 2020, your absences between July 2019 and July 2020 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 — however, 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”.
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 exists.
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), or

– 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.

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), or

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

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

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).

Further reading

There are different requirements for obtaining a permanent residence document, settled status, and citizenship. This post does not examine all of the separate requirements in detail, so some further reading may be necessary.

The requirements for permanent residence are covered in detail in a post last updated in February 2018. Nath provides details of the requirements for pre-settled and settled status in this recent piece (if criminal convictions are likely to cause an issue for you, see also Colin’s piece from February 2019).

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