Absences

Briefing: residency rules for naturalisation as a British citizen by Charlotte Rubin

There are different pathways to British citizenship. If you were born in the UK, you may be automatically eligible to register for British citizenship your year of birth and your parents’ circumstances at the time. Otherwise, you can become British through the process of naturalisation.

To naturalise as a British citizen, the applicant will need to meet certain statutory criteria concerning their immigration status, their length of residence in the UK, their future intentions, their knowledge of the English language and life in the UK, and finally, good character.

Generally, they must have lived in the UK lawfully for five years (or three years if they are married to a British national), with only a certain number of absences from the UK permitted during that period. This is what is called a “lawful qualifying period of residence.” The general rule for a qualifying period is relatively straightforward - if you are at least 18 years old, and have been living in the UK for the required period of time, you should be able to apply for naturalisation. Before Brexit, this five-year qualifying period could be proven by showing that applicants had acquired a right of permanent residence or indefinite leave to remain in the UK.

Since the rollout of the EU Settlement Scheme (EUSS), this has become more complicated. Settled status under the EUSS is, according to government guidance, a form of indefinite law to remain. In theory, it should therefore be enough to prove a five-year qualifying period. Yet it turns out that that is not the case. Government guidance on the EU Settlement Scheme states that 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.”

In other words, EUSS settled status, technically a form of indefinite leave to remain, does not suffice as proof of lawful residence for the purpose of naturalisation. The EUSS was designed to be broad and inclusive, so that most EEA citizens who had been living in the UK before Brexit would be able to register to stay. It was not designed to assess whether applicants were actually lawfully in the UK at that time. Thus, a grant of settled status confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS, but not necessarily that they were resident lawfully.

As a consequence, when an EEA citizen applies for naturalisation relying on their settled status have to demonstrate that they have spent their lawful qualifying period 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 for EEA citizens 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.

If there is not enough proof that the period of residence relied upon was a lawful period, the EEA applicant may have to start their five-year count again from when they received settled status. This means that they effectively will have had to be resident in the UK for ten (or eight, if they are applying based on their spousal relationship) years instead of five, consisting of five years of residence to obtain settled status, and then five additional years with their settled status. According to the Immigration Rules and government guidance, the only way around this relies on the Home Office exercising discretion when assessing the application. The inevitable conclusion is that EU citizens are less likely to successfully naturalise than others, or at the very least that it will take them more time to do so successfully.

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