By Ioannis Karamarias*
The Home Office has decided to make it more difficult for European residents to become British citizens. EU citizens, (also including citizens from Switzerland, Norway, Iceland and Liechtenstein, namely from the European Economic Area as a whole), with settled status who apply to be naturalised British citizens may now have to provide evidence that they have been living in the UK legally, according to the up-to-date Guidance related to the Government’s Nationality Policy, that was released on 14th May 2020.
A] EEA (or Swiss) nationals (and/or their family members) residents in the UK on Indefinite Leave to Remain (settled status) under the EU Settlement Scheme
One of the requirements for naturalisation of an EU/EEA citizen as a British citizen is to have lived in the UK for five years (or three years if the EU/EEA or Swiss citizen in question is married to a British citizen). Time living in the UK in breach of UK immigration law is not taken into consideration. The Home Office has long taken the view that EU/EEA or Swiss citizens who are physically present in the UK but who do not have a right of residence under EU law are in breach of UK immigration law.
A person who was granted pre-settled status may be currently, (as of May 2020), subjected, under a legal point of view, to both UK Immigration Rules, (in accordance with the EU Settlement Scheme which is related to pre-settled or settled status), and to the Immigration (EEA) Regulations 2016 legal framework, (which is due to be scrapped on 31st December 2020), whilst being resident in the UK. If the said person has been granted pre-settled or settled status, he/she will not have to prove that he/she was exercising an EU Treaty Right in the ambit of the Immigration (EEA) Regulations 2016, (eg, as a worker, self-employed, or self-sufficient person on private sickness insurance of such a person, EU or non-EU citizen, close or extended family member or as a student on private sickness insurance, etc, or a family member).
However, such pre-settled or settled status/Indefinite Leave to Remain in the UK, for EU/EEA or Swiss citizens and their family members, cannot confirm, under a legal point of view, that the said person was lawfully resident in the UK also under the Immigration (EEA) Regulations 2016, for the purposes of the British Nationality Act 1981, (if the said person wishes to apply for British citizenship and the passport), at the time he was living in the UK with pre-settled or settled status under the EU Settlement Scheme. And this, because the EU Settlement Scheme, (introduced in June 2018 with a view to meet the needs of the EU citizens, residents in the UK in the context of the UK’s imminent exodus from the European Union), sets different requirements to these provided by the Immigration (EEA) Regulations 2016; so, lawful residence under the EU Settlement Scheme is defined in a different way to that under the Immigration (EEA) Regulations 2016; therefore, for an EU/EEA or Swiss citizen who wishes to apply to be naturalised British citizen under the British Nationality Act 1981 and also obtain the British passport, to be treated as lawful resident in the UK, (also meeting the requirements of the British Nationality Act 1981), he/she must be considered as such, if he/she can demonstrate that he/she complies with the requirements of the Immigration (EEA) Regulations and not with those of the EU Settlement Scheme. This is particularly related to those EU/EEA or Swiss citizens, (and residents in the UK), who have been studying or are self-sufficient, (namely they have been living on their own financial means), with or without (private or comprehensive) sickness insurance. (we will examine each of these cases as to whether they are entitled to apply for British citizenship and the passport, separately, in the paragraphs, below).
B] EEA and Swiss Applicants who have been studying in the UK or are self-sufficient and have (private and comprehensive) sickness insurance
Those (EU/EEA or Swiss) Applicants, (before applying for British citizenship and the passport), must provide evidence to the Home Office, clearly demonstrating that they have been living in the UK lawfully; in particular, they have to provide a copy of their comprehensive sickness insurance policy, (namely a private health insurance policy that, upon payment of a premium by the insurance holder on a monthly basis- covers these persons in full in case they may have to be admitted in a hospital or clinic for medical treatment, or in case they may have to undergo diagnostic tests, scans or consultations without being admitted in a hospital), also in accordance with the Immigration (EEA) Regulations 2016. Comprehensive Sickness Insurance is a legal requirement for EU/EEA or Swiss citizens who have been studying or been living in the UK as self-sufficient persons and their (EU/EEA or Swiss) family members who are residing in the UK with them. Such Applicants must indicate in their application for naturalisation that they are in possession of Comprehensive Sickness Insurance and also provide any information related to it, (always in the ambit of the said naturalisation application).
C] EEA and Swiss Applicants who have been studying and have been living as self-sufficient persons in the UK and do not have Comprehensive Sickness Insurance
As we saw above, being in possession of Comprehensive Sickness Insurance is a legal requirement under the new Home Office (Naturalisation Application) Guidance, (issued on 14th May 2020), for EU/EEA or Swiss students, self-sufficient persons and their (EU and on-EU) family members, (close and extended), who are residing in the UK with them. The British Naturalisation Form requests the Applicants in question to state whether they were in possession of Comprehensive Sickness Insurance during their stay in the UK, (the previous years, before being eligible to apply for British citizenship and the passport). Those who are not in possession of sickness insurance must provide an explanation for not being so, in the box provided for this purpose in the (British) naturalisation application. (the so-called AN Form). This requirement also includes people who previously applied for EEA Permanent Residence under the Immigration (EEA) Regulations 2016 and were refused on grounds of not having such Insurance.
As a result, under the up-to-date Home Office (Naturalisation) Guidance, (of 14th May 2020), a Home Office caseworker, who will assess the Naturalisation application of the EU/EEA or Swiss citizen, (and his family members), must work out why the Applicant in question does not have Comprehensive Sickness Insurance. In case the Applicant in question, (before applying to be naturalised British), had been granted Indefinite Leave to Remain in the UK under the EU Settlement Scheme but has not been resident in the UK in the way it is provided by with the Immigration (EEA) Regulations 2016, because of lack of Comprehensive Sickness Insurance, the said Home Office caseworker is entitled to exercise, (or not exercise), discretion to the Applicant’s favour, (and therefore, finally approve or not approve the Applicant’s naturalisation application, accordingly).
X is a Greek, and therefore, an EU/EEA citizen, living in the UK. He entered the UK in early 2015, and has been living there, since then. In early 2020, he applied and obtained Settled Status, pursuant to the EU Settlement Scheme. Before applying for and obtaining settled status, X had failed to exercise EU Treaty Rights in the UK, continuously, for at least five years; out of the five years he needed to stay in the UK before applying for and obtaining settled status as a UK resident, he spent two years, (from early 2015 to early 2017) as a student in a British University but without having Comprehensive Sickness Insurance at that period of time; then, he spent one year, (from early 2017 to early 2018), as a self-sufficient person relying on his/her own financial means, (eg, bank savings), still without Comprehensive Sickness Insurance; in early 2018, he got a full-time job in the UK, and, therefore, only the last two of the five years of his residence in the UK overall, (from early 2018 to early 2020, when he applied for and obtained Settled Status in the UK), he exercised EU Treaty Rights in the UK, as a worker, also in accordance with the Immigration EEA Regulations 2016. Under the up-to-date Home Office Guidance as to Naturalisation as a British citizen, (issued on 14th May 2020), if he now applies in early 2021, (as the relevant law, British Nationality Act 1981, requires), to be naturalised British citizen, even if he may meet all the requirements of British Nationality Act 1981, (such as those having passed the Life in the UK Test, being on a flawless criminal record and the other good character requirements in general), the Home Office may still refuse his naturalisation application, thus depriving him of the possibility to become a British citizen, on the grounds that he had failed to exercise EU Treaty Rights for the entire period of the previous five years of his (demonstrated by evidence) residence in the UK, because, due to lack of Comprehensive Sickness Insurance for a period of time of 3 out of the 5 years he had been living in the UK, he failed to exercise EU Treaty Rights in the UK for at least 5 years, prior to applying for British citizenship.
Finally, under the new Home Office Guidance on nationality policy, (as of 14th May 2020), the Home Office caseworkers, while considering an application for naturalisation submitted by an EU/EEA or Swiss citizen, (or his family members), with settled status, (which the said EU/EEA or Swiss citizen had obtained under the EU Settlement Scheme introduced in June 2018, prior to applying for British citizenship), must carefully and thoroughly assess the (immigration) background of the Applicant in question, (namely whether the Applicant in question had exercised EU Treaty Rights in the UK, in any of the ways described above, during the 5-year qualifying period leading to settled status), and when it emerges that the Applicant in question had not exercised EU Treaty Rights for the entire qualifying period of five, (5), years, due to lack of comprehensive sickness insurance, then, they have to work out the exact reasons why the Applicant in question does not possess Comprehensive Sickness Insurance; this will help them draw conclusions as to whether there are (any) compelling grounds, in any of these cases, to justify non-possession of comprehensive sickness insurance, with a view to exercise discretion in those Applicants’ favour, (ultimately, deciding in such a case to approve their British citizenship application).
The fact that many EU/EEA or Swiss citizens, living in the UK are lacking the right, under a legal point of view, to reside in the UK is not uncommon or extraordinary. A considerable number of Europeans who did not have comprehensive sickness insurance were caught out by this in the recent past and, because of it, were refused Permanent Residence status in the UK, by the Home Office.
Because of Brexit, (namely the withdrawal of the UK from the European Union), EU/EEA or Swiss residents and their family members have been offered immigration status under the EU Settlement Scheme, namely under a legal framework introduced in June 2018, (while negotiations between the UK and the EU for the exodus of the UK from the EU, after triggering Article 50 of the EU Lisbon Treaty were, at that time, still ongoing), which is entirely based on UK law, and not on EU law, principles. Under the EU Settlement Scheme, the EU/EEA or Swiss citizens, (and their family members), who are residents in the UK, were granted the opportunity to keep living in the UK lawfully, by applying for and obtaining the so-called “settled status”, which replaced the so-called “Permanent Residence” status, provided under the EU law which was implemented in the UK through the Immigration (EEA) Regulations 2016.
“Settled status”, does not require any proof of a previous right of the EU/EEA or Swiss citizens in question, (and their family members), to reside in the UK; the main condition that renders the said persons eligible for obtaining settled status is their simple physical presence in the UK, for at least five consecutive years and at least 180 days for each of these five years, (which is the qualifying period leading to settled status).
However, under the new Guidance of the Home Office, (of 14th May 2020), when EU/EEA or Swiss citizens, (and their family members), with settled status in the UK apply for British citizenship, the Home Office is now saying that the right to reside issue is of critical importance and must be taken into account by the Home Office caseworkers, before they can make a decision on a naturalisation application. Therefore, mere proof of settled status is not enough, under this point of view.
Under the new Guidance, settled status will merely serve as proof of being free of immigration time restrictions, (which is another of the requirements an EU/EEA or Swiss citizen, (and his family members), must meet before applying to for British citizenship, but will not do in terms of demonstrating that the Applicant’s residence in the UK, up to the point of obtaining settled status, was in accordance with Immigration law. (which is now considered as the main criterion and condition for enabling somebody to apply for British citizenship).
Nevertheless, none of all these, (including those mentioned in the above paragraphs), appeared in any of the previous editions of the naturalisation policy and guidance of the Home Office.
Later on, the new Home Office Guidance does suggest that Home Office caseworkers can exercise discretion as to whether to overlook some technical breaches of the Immigration (EEA) Regulations: “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 assessment about whether discretion should be exercised in their favour”.
On exercising discretion, the new Home Office Guidance, (of 14th May 2020), suggests that being in breach of the Immigration (EEA) Regulations, (namely, the EU law), is not as bad as entering the UK illegally or overstaying on a Visa that has expired. But EU/EEA or Swiss citizens, (and their family members), assuming they are aware of their precise legal status in the first place while applying for British citizenship, will still have to “provide sufficient evidence to justify discretion being exercised in their favour”. This will lead in a larger number of naturalisation applications made by EU/EEA or Swiss citizens, (and their family members), being refused by the Home Office; therefore, the effect will be to make it more difficult for EU/EEA or Swiss citizens and their family members to become British than if “settled status” of these Applicants were accepted by the Home Office, as the only evidence of having been lawfully resident in the UK, and therefore, as the only condition to qualify them for British citizenship.
By contrast, if the person has previously obtained a Permanent Residence Card, (under the Immigration EEA Regulations 2016, namely under the EU law provisions, as implemented in the UK, and not under the EU Settlement Scheme as introduced in 2018, in order to meet the needs of Brexit process), that will automatically — unlike settled status — serve as proof of five years’ lawful residence in the UK and any subsequent application for naturalisation or British citizenship, based on possession of a Permanent Residence Card will, in this case, be approved by the Home Office.
Concluding, we would point out that it is at least paradoxical for the Home Office to grant, on the one hand, the opportunity to EU/EEA or Swiss citizens and their family members, under the new EU Settlement Scheme, (introduced to meet the needs of the post-Brexit era), to obtain immigration status, outright, by allowing them to get Indefinite leave to Remain in the UK based entirely on their residence in the UK for five consecutive years, (proving that for at least six months, of each of these five years, leading to a period of five years of stay in the UK, overall, they have been UK residents), and without the need to provide any further evidence, but on the other hand, “raise the bar” for these people, if the latter, after having obtained settled status and living in the UK without any immigration restrictions, apply for British citizenship, (from 14th May 2020 and for the years ahead, after 2020); not only does the Home Office Guidance request them to provide further evidence, (of having exercised EU Treaty Rights in the UK), mainly arising out of EU Law, (the Immigration Regulations), which is, however, due to be abolished on 31st December 2020, but it also leaves very limited room for discretion to be exercised in these Applicant’s favour, (with regard to their naturalisation/British citizenship application), under the (newly introduced, with a view to meet the needs of the post-2020 Brexit era), EU Settlement Scheme.
This amounts to “double standards” and obviously aims at raising unnecessary barriers and obstacles to EU citizens, mainly penalising those ones, who may have previously shown genuine intention, directly or indirectly, to stay in the UK and have even tried to do the needful to integrate into the British society but found it difficult to achieve it- at least at the initial stages of their stay-due to circumstances beyond and above their control.
Therefore, it would be wise for the Home Office to take a second look at this matter, (before the Brexit process reaches its final stage, something that is expected to happen by late December 2020), with a view to revise on the Guidance of 14th May 2020.
*Ioannis Karamarias, LLB(Hons), LLM, (Univ. of Bristol), LLM, (Queen Mary, Univ. of London), is a Qualified Solicitor, (England and Wales), specialising on Immigration Law matters.