Settled Status not enough to prove eligibility for British Citizenship by Charlotte Rubin

On 15 May, the Home Office published an update to government nationality policy. The updated policy includes changes to the requirements for EEA nationals who want to become British citizens, and has major ramifications for EU citizens who apply for naturalisation after obtaining settled status under the EU Settlement Scheme (EUSS).

After Brexit all European residents in the UK, as well as their family members, need to obtain immigration status under the EU Settlement Scheme. This is to ensure that they can continue to enjoy residence rights in the UK under national law instead of EU law when EU law stops being applicable at the end of the transition period. Under the Scheme, an EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK are eligible for settled status (provided they also meet any other relevant eligibility and suitability criteria). Put simply, if the individual can prove that they have been in the UK for five years, they are granted settled status, a status which is supposedly equivalent to indefinite leave to remain. Those with a continuous qualifying period of less than 5 years’ are eligible for pre-settled status.

As a general rule, anyone who wants to naturalise as a British citizen must have lived in the UK for five years (or three years if they are married to a British national). The period of residence must be a lawful period of residence, and only a certain number of absences from the UK are permitted during that period.

The Home Office has long considered EU citizens physically present in the UK without a right of residence under EU law as individuals in breach of UK immigration law. As such, EEA citizens living in the UK without studying, working, or looking for work are not exercising treaty rights and therefore, unlawfully resident. But the EUSS partly abandons that rhetoric, as settled status is granted irrespective of what the individual was doing in the UK for five years, as long as they can prove that they were present in the UK for the required period of time. Immigration lawyers had previously expressed concern on how this would affect naturalisation applications from people who obtained status under the EUSS. The new guidance now confirms their fears, clarifying that when individuals apply for naturalisation, settled status alone might not be enough to fulfil the criteria for citizenship.

The updated guidance states: “However, this 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.”

An applicant who is applying based on their settled status can still get citizenship, if the caseworkers exercise their discretion when considering the application. EU nationals will have to “provide sufficient evidence to justify discretion being exercised in their favour.”

In other words, the policy update confirms that because settled status-type leave to remain does not directly prove that the applicant’s residence up to the point of getting settled status was in accordance with immigration law, an individual wanting to become a British citizen will have to show that they were, in fact, lawfully resident for the qualifying period when they apply for naturalisation in addition to proving their settled status. This goes against previous Home Office verbal assurances that ‘they’ll be flexible and pragmatic’, that ‘it would be odd to grant settled status and then go on to refuse naturalisation applications because of this’ and that ‘they’ll update the guidance in due course.’

To make matters worse, the policy can be applied retrospectively. There have already been reports of the Home Office reaching out to applicants who previously applied for naturalisation to ask for additional evidence of exercise of treaty rights.

The inevitable conclusion is that EU citizens are less likely to successfully naturalise than others. As always, this will have a disproportionate effect on vulnerable applicants. Getting citizenship is an expensive ordeal: the cost of an application for one adult is £1330, and for a family, can easily ramp up to thousands of pounds. The heightened risk of losing such a significant amount of money and having their application refused will discourage many eligible EU citizens, especially those from disadvantaged economic backgrounds, from applying at all. Additionally, the guidance also applies to family members relying on a qualified family member for their EEA status, who will need to include evidence of the family member’s right to reside. Vulnerable applicants, such as domestic violence victims, may not be able to get the evidence required, and therefore have their application refused.

Instead of changing the rules to reflect the Home Office’s rhetoric of EU citizens as “our partners and friends,” the updated policy poorly clarifies the existing rules, needlessly complicating the application process. Indefinite leave to remain under the EUSS seems “less valid” or tied to different conditions than other forms of indefinite leave to remain, as applicants are left with no other option than to rely on Home Office (arbitrary) discretion to secure their citizenship.

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