Section 6(2) of the British Naturalisation Act 1981 lays out the rules for naturalisation for individuals applying based on their 3 or 5 residence in the UK. Further information on the rules of naturalisation can be found on our website here. It is important for EU nationals to be aware that simply having Settled Status for 12 months or more does not automatically make them eligible for naturalisation. Recent changes in the Home Office guidance has made it more challenging for EU nationals to obtain naturalisation after their 3 or 5 years period of residence.
Applying for British Citizenship after EU Settled Status
On 14 May 2020, the Home Office published updated Guidance on Naturalisation as a British citizen by discretion, in which they state that Settled Status is not proof of lawful residence in the preceding years:
A “grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this.
The naturalisation application form (Form AN) asks for information to confirm the applicant was lawfully in the UK for the relevant 3 or 5 year qualifying period.
A person granted pre-settled status may have dual running rights under both UK immigration rules (in accordance with their grant of pre-settled status) and the EEA Regulations during their residence – once granted pre-settled status, they will not need to demonstrate that they were exercising a treaty right. To assess whether the person was here lawfully in accordance with the EEA Regulations (if required) prior to their grant of pre-settled or settled status you must look at the guidance on EEA/Swiss nationals and their family members. This includes the type of evidence you can take into account.You must assess whether the applicant was lawfully resident under the EEA Regulations in accordance with that guidance and therefore lawfully in the UK for any residence prior to the grant of pre-settled status, or settled status.
If the information is not provided with the application form, you must request it.
You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:
- as a qualified person (such as a worker, student, self-employed, selfsufficient, retired or incapacitated person)
- as the family member of such a person.
Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI).”
Along with proof of 3 or 5 year proof of lawful residence, applicants are now required to prove that they did not breach any immigration laws for up to 10 years before the date of their application. And not having CSI whilst being a student or self-sufficient may be considered a breach of the law.
Good character requirement for EU nationals applying for Naturalisation
Amongst the requirements for naturalisation, the good character requirement has been updated recently affecting how EU nationals become eligible for naturalisation. Recently, the Home Office updated its guidance on how they will be assessing the good character requirement of EEA citizens in the UK.
Under the new policy, to qualify for British Citizenship, EU nationals who have been students or self-sufficient must have held Comprehensive Sickness Insurance (CSI) or a European Health Insurance Card (EHIC) issued by an EU country for ten years (previously this was 5 years). This is particularly problematic for EEA nationals in relation to economically inactive periods and the need to hold CSI.
The guidance states that:
“In assessing whether a person has complied with immigration requirements over the previous 10 years, you must take into account whether they were subject to the EEA Regulations 2016 or the Immigration Act 1971 and whether they complied with the relevant requirements.”
The CSI rule does not apply to EU nationals who have been in employment or self employment.
However, EU nationals who have been in the UK for a considerable amount of time and have obtained EU Settled Status will have to prepare carefully and address any gaps in their exercise of Treaty rights.
For example, if an individual came to the UK to study 8 years ago and started working after completing their studies, will have to prove that they held CSI during their time as a student. The same CSI requirement will apply to any periods of time when they were self sufficient.
In relation to health insurance, the Guidance now states that:
Comprehensive Sickness Insurance (CSI) is a legal requirement for EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them.
If a person did not have CSI, you must consider why they did not have it. Where a person has been granted ILR under the EUSS but has been in breach of the EEA Regulations 2016 due to a lack of CSI you must consider whether it is appropriate to exercise discretion in their favour.
Some applicants will have previously been refused permanent residence on the basis of not having CSI. When considering whether it is appropriate to exercise discretion, you must assess the reasons given for this, and why they did not then obtain CSI.
Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI).”
Where EEA Applicants have lived in the UK for a long time and applied for settled status without ever having been granted a document to show their right of permanent residence, they could well be asked to provide further evidence to prove their lawful residence in the years prior to a naturalisation application.
For students and the economically inactive, a lack of health insurance – comprehensive sickness insurance (CSI) – could be a problem.
In relation to this specific issue, there is some discretion:
“CSI is a legal requirement for EU, EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them.The form asks the applicant if they had comprehensive sickness insurance during their time spent in the UK. Those who answer no should have provided an explanation in the box provided. This will include people who previously applied for permanent residence and were refused on the basis of not having CSI.
You must consider why the applicant did not have comprehensive sickness insurance. Where someone has been granted ILR under the EUSS but has not been resident here in accordance with the EEA regulations (prior to grant of pre-settled status or settled status) due to a lack of comprehensive sickness insurance you should consider whether it is appropriate to exercise discretion in their favour.
Some applicants will have previously had an application for a document to confirm their permanent residence refused, on the basis of not having CSI. You must assess the reasons given for this, and why they did not then obtain it, and consider whether there are compelling grounds to exercise discretion. “
The guidance does not say that everyone without CSI will be refused citizenship, however it does not say they will be granted either. And if an applicant is affected by this issue, they may request that the caseworker use discretion. It would just mean that if the application is refused, the application fee of £1349.20 (of which only £80 citizenship ceremony will be refunded) will be lost. The applicant may apply again if they wish anytime in the future.
