On 14 May 2020 (1), amendments to the Home Office Nationality Policy Naturalisation guidance was indeed re-published. The Nationality Policy Naturalisation guidance is issued to Home Office caseworkers processing naturalisation applications to help them determine if an applicant meets the legal criteria to be naturalised. The guidance is publicly available so that those applying for naturalisation (and those assisting them to apply), can understand how the various criteria will be assessed and what evidence is required with the application to demonstrate the conditions are met.
In spite of what has been implied in certain media reports, the updated guidance does not constitute a change in the legal position for EEA citizens. Rather, it amended the sections relating to “Breaches of immigration law in the qualifying period”(2) and “People who are lawfully resident in the UK”(3) to include references to EEA citizens and their family members(4) who are relying on their grant of settled status (Indefinite Leave to Remain) under the EU settlement scheme (EUSS), to demonstrate that they are settled in the UK(5).
Nationality law requires a person naturalising to have a five-year or three-year lawful qualifying period, working back from the date they apply for naturalisation. The three-year lawful qualifying period is for those who are married to or are in a civil partnership with a British citizen. The five-year lawful qualifying period is for all other applicants. Before the EUSS existed, this lawful qualifying period criteria would normally be satisfied by an EEA citizen by acquiring EU/EEA permanent residency in the UK(6). The EEA citizen could then apply for naturalisation either 12 months after the acquisition of permanent residence or, immediately on obtaining permanent residence if they are married to or in a civil partnership with a British citizen.
The EUSS has changed the situation described above for some EEA citizens who wish to naturalise. This is because rather than applying for EU/EEA permanent residence documents, most EEA citizens with a 5-year residence in the UK now apply directly into the EUSS for settled status(7). However, because the EUSS application does not assess whether the applying EEA citizen was exercising their treaty rights in the UK, being granted settled status is not confirmation that the citizen was resident in the UK lawfully during the qualifying five years relied on.
The grant of settled status only confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS. That is not to say that a citizen granted settled status has not been in the UK lawfully during their five-year qualifying period, only that the EUSS is not designed to assess this particular legal point. In other words, being granted settled status is not reliant on lawful UK residence. As a consequence, when an EEA citizen applies for naturalisation relying on their settled status to demonstrate that they are settled in the UK, the Home Office caseworker cannot tell whether they were lawfully residence in the UK for the period before they were granted EUSS status. Therefore, part of the naturalisation process has to include an assessment as to whether the EEA citizen was lawfully resident (rather than just resident), in the UK for the three or five-year qualifying period that applies to them.
When assessing lawful residence, any period after the citizen was granted settled status (or granted pre-settled status which was then converted into settled status), will be considered lawful because it is leave to remain granted under the 1971 Immigration Act. However, because the EUSS has only been in existence since August 2018 (and open to the whole EEA population since March 2019), any EEA citizen applying for naturalisation at the present time will have to rely on a period of lawful residence that pre-dates their grant of EUSS status. Therefore, what the Home Office caseworker must do according to the new guidance, is assess the period of lawful qualifying residence that pre-dates the grant of EUSS status, through the prism of the exercise of treaty rights. This will be the only way to tell whether the EEA citizen was in the UK lawfully for that period.
Carrying out the assessment in this way means that some EEA citizens who hold settled status will not be able to naturalise as British citizens if their pre-EUSS status was not in accordance with the Free Movement Directive/exercising treaty rights (for example an economically self-sufficient person who did not hold comprehensive sickness insurance). A citizen in this situation will need to wait for either five years or three years from the date that they were first granted EUSS status, in order to meet the lawful qualifying period to naturalise. This is what, as we previously reported, complicates the naturalisation process for EEA nationals.
The guidance does contain a discretion for the caseworker to overlook certain breaches of lawful residence which, which includes a situation where an EEA citizen did not hold comprehensive sickness insurance for example. The wording of the discretion says that the requirement to be lawfully resident will be disapplied where:
"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”(8)
There is no information in the wording of the discretion as to what evidence, or situation will constitute one that justifies discretion being exercised in the applicant’s favour. Therefore, an EEA citizen wishing to naturalise but who may fall foul of the requirement to hold comprehensive sickness insurance, will not know whether or not their application would be successful based on the information provided as to how the discretion should operate. They risk the £1350 naturalisation application fee without any guarantee of a successful outcome(9).
From a practitioner’s perspective, it would be advisable that any applicant in a situation where there is a risk of being refused for not holding comprehensive sickness insurance not to apply for naturalisation (unless they were prepared for the outcome to be unsuccessful). The reason for this stance is that irrespective of the existence of the discretion to overlook the lack of comprehensive sickness insurance, the discretion is so ill-defined as to be meaningless to base legal advice on.
As set out above, there has not been any change to the legal requirements to become a naturalised British citizen, as all applicants for naturalisation irrespective of their nationality must have a five or three-year lawful qualifying period to rely on. However, some of the reporting around this new guidance, including our own, indicates or implies that the Home Office has made it more difficult for EEA citizens wishing to apply for naturalisation. Carrying out these checks in relation to lawful residence by making citizens demonstrate they were exercising treaty rights undoubtably creates an increased evidential burden on EEA citizens apply for naturalisation, particularly for those who have not applied for an EU/EEA permanent residence document in the past. However, the Home Office was always able to request this evidence even before the explicit guidance was published, as the guidance does not create a new legal requirement to be lawfully resident. Instead, it clarifies the way in which case workers should assess lawful residence for EEA citizens applying with settled status. Given that the EUSS opened initially in August 2018 and then to all EEA citizens in March 2019, it is evident that this guidance document could and should have been provided at a much earlier stage. This way EEA citizens would have had clarity on exactly what they are required to evidence when applying to naturalise. The delay in clarifying this need for EEA citizens to evidence that they were lawfully resident in the UK for the period before their EUSS status grant will increase the perception that there has been a change in the law or approach of the Home Office, and that it was only implemented to make life more difficult for EEA citizens wishing to become British after obtaining settled status.
(1) See Home Office document Nationality policy: Naturalisation as a British citizen by discretion Version 5.0
(2) Note that this is different the condition in the Good Character Requirement that requires in the 10 years pre-dating the naturalisation application, the applicant has complied with immigration requirements. The guidance states “Breach of the immigration laws’ for the purpose of the residence requirements refers only to unlawful residence. It does not include contravening immigration law in any other way, but this is considered as part of the good character requirement.” [page 25]
(3) See pages 25 - 31
(4) References to EEA citizen should be read to cover their non-EEA family members
(5) Being a settled resident is a condition which citizens of all nationalities must meet to naturalise and means there must be no time limit on the amount of time they can reside in the UK.
(6) Generally permanent residence is acquired after a five continuous period in the UK where the EEA citizen has been exercising “treaty rights” under the Free Movement Directive or the EU treaties.
(7) Those who qualify for pre-settled status (Limited Leave to Remain) cannot apply for naturalisation as they are not considered settled in the UK, one of the conditions to naturalise.
(8) See Guidance document page 28
(9) £80 would be refunded out of the total fee in the event of an unsuccessful application
On 28 May 2020, China’s legislature approved controversial national security laws to be implemented in Hong Kong. With these new laws, Beijing is trying to discourage and stop the protests against the mainland’s tightening grip on Hong Kong which have been taking place for over a year now.
The new laws have been criticised internationally as anti-democratic. Critics fear that the laws will undermine the city’s autonomy under the “one country, two systems” framework which was created when Britain handed Hong Kong back to China in 1997. Under this system, Hong Kong was returned to the mainland on a number of conditions, including a certain level of autonomy in the region as well as the maintenance of certain defined freedoms that do not exist in mainland China, such as the freedom of expression.
In the ten years leading up to the handover, people from Hong Kong were entitled to apply to register for British National Overseas (BNO) status. Many did, either to retain a connection to the UK, or simply because this was their only way to obtain a passport at that time. For Hong Kong residents, the final deadline to apply for BOC was 1 July 1997, when Hong Kong was handed back to China.
Where a Hong Kong British Dependant Territory Citizen (BDTC), which is what Hong Kong residents were called under British rule, was left stateless due to the handover because they lost their BDTC status and China did not recognise them as Chinese nationals, they automatically received British Overseas Citizenship (BOC) by operation of law, even if they failed to register by the deadline. This means that although there may be relatively few people who actually hold a BNO passport, many more of them received a BOC or BNO status automatically. As such, as of February 2020, there are only about 350,000 holders of BN(O) passports in Hong Kong, but Home Office estimates of the amount of BNOs actually living in Hong Kong lie closer to 3 million. All of them would be eligible for a BNO passport should they request one.
Neither BOC or BNO status include the right of abode, meaning that holders do not have any automatic right to live and work in the UK. BNO and BOC citizens are not considered British citizens; they must comply with all immigration rules the same way that third-party nationals do. The status does not provide the holders with a “home country,” only to legal and consular protection. In light of the new national security laws passed by Beijing, however, the Home Office announced that the government was going to “explore options to allow BN(O)s to apply for leave to stay in the UK, if eligible, for an extendable period of 12 months.” Foreign secretary Dominic Raab explained that the government plans on granting everyone with BNO or BOC status in Hong Kong 12-month extendable periods of leave, providing a clear “path to citizenship” not only for the 350,000 current BNO passport holders in Hong Kong, but including the more than 2.9 million residents eligible to apply for the passport.
The Prime Minister called the opening of this path to citizenship one of the “biggest changes” to the British visa system, as nearly 3 million Hong Kong citizens could be eligible to move to the UK as a consequence of it. He stood by the US, Canada and Australia joint statement that Hong Kong , which “flourished as a bastion of freedom," now needs and deserves protection against an increasingly encroaching Chinese state.
The Prime Minister’s proposal, however, needs to be put into a wider context. Clearly, the government is not solely concerned for the people of Hong Kong. There are other motives for this seemingly radical move. One of them is – unsurprisingly so – financial. If BNO’s apply for a 12-month extendable period of leave, and are then required to extend their status year after year until they reach the usual 10-year threshold of long residency before being able to apply for British citizenship, the cost of those successive applications could be as high as £20,389.40 per person. That is an astronomical potential profit for the Home Office.
Additionally, in light of the new points-based immigration system which the Johnson government is planning to implement in January 2021, a cynic might suggest that the proposal to Hong Kong residents is more of a calculated political move than a human rights initiative. Under the points-based system, it will become much harder for EU citizens, of which the Home Office estimates there are currently about 3.7 million living in the UK, to move and work here. As the PM realises the ramifications of closing the borders to EU workers, his offer to Hong Kong residents could help filling the void that Brexit leaves in the British economy and job market. After all, the people of Hong Kong the PM is appealing to, who were born before 1997, are now in their twenties and older – the prime age to move and work abroad, or who are financially secure and will be able to give the economy a much needed boost.
Maybe the rules could be adapted for Hong Kong nationals to lighten the financial burden, or fast-track applications so that the 10-year threshold does not have to be met. The Foreign Secretary and PM have confirmed that the changes are conditional upon China implementing the newly proposed laws. The details of the plan are still being worked out, and no changes to the Immigration Rules or citizenship legislation have been announced yet. The Chinese government, on their end, have firmly opposed the move by the UK, stating that it is a violation of the 1997 handover agreement that stipulates BNO passport holders do not enjoy UK residency. It remains to be seen how much of an impact the PM’s threat will have on China’s expansionist plans, and to what extent the UK government is willing to press on the issue.
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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In Adrian Berry’s excellent blogpost, the author and barrister helpfully summarises the ways in which people automatically become British citizens. The complexity of this area of law means that some people may believe they are British when they actually aren’t, and others may already be British citizens without knowing it, especially since one can be a British citizen without having a British passport - a passport doesn’t give you nationality, it is only evidence of nationality.
The law in this area is particularly pertinent for those who may need to apply for the EU Settlement Scheme, but do not realise they need to do so because they mistakenly believe they are British citizens. These individuals must still apply to the EUSS before the deadline, which is the 31 December 2020. So how can you find out if you’re British, or if you need to apply?
You are automatically a British citizen if you were born in the UK or in British overseas territories to a British citizen parent or a parent with indefinite leave to remain. This means that even if you were born in the UK to parents who are EU nationals, you are not automatically a British citizen unless one of your parents had indefinite leave to remain at the time of your birth. Indefinite leave to remain means being ordinarily resident in the UK (i.e. not a visitor) and having no time restrictions on the permission to be in the UK. EU citizens can automatically acquire such a permanent residence status after five years of residence if they are working, self-employed or self-sufficient/student with comprehensive health insurance.
The parent could be either your mother or father. Prior to 2006, parents had to be married before fathers could pass on their British citizenship, so if you were born before 2006 to a British father you may have to register for citizenship. The parent passing on their citizenship could also be your adoptive parent if you were adopted in the UK or a Hague Convention country.
Those born in a foreign country can be British citizens by descent if they have a British citizen parent. However, this is only the case for one generation: British citizens by descent (those born outside the UK) cannot pass citizenship on automatically to children born outside the UK and British overseas territories. So, if you and your British parent were born outside the UK, you may not be a British citizen unless you have been registered.
Other people automatically became British citizens on 1 January 1983 if they were previously Citizens of the United Kingdom and Colonies with a right of abode in the UK, because this is when the British Nationality Act 1981 came into force. Similarly, some people in British overseas territories were automatically made British Citizens through the British Overseas Territories Act 2002.
British nationality comes in different forms so people without British Citizenship could still have British nationality. For example, British Protected Persons are British nationals who have connections to former British colonial possessions. British Protected Persons can be found in now independent countries such as Kenya, Uganda, Zambia and Malawi. People who were born pre-1949 in India or Pakistan but who did not become an Indian or Pakistani citizen after independence will have retained their British Subject status. Alternatively, under the British Nationality Act 1981, people acquire nationality if they were born Stateless and would remain stateless unless given British nationality.
Even if you don’t automatically possess British nationality, you could still acquire it if you register or apply for naturalisation.
If you’re European and unsure whether you hold British nationality, it is worth checking soon. You need to check so, if necessary, you can apply for the EUSS scheme before the deadline on the 31 December 2020, and ensure you remain in the UK legally after Brexit.