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Brexit: How does EU Settled Status fit with Naturalisation? Lawful residence and the ‘good character’ requirement

EU Settled Status is something of an anomaly.  Not only does it take five years’ continuous absence from the UK to lose this status, which is longer than for other grants of indefinite leave to remain, but, other than being someone eligible to apply and meeting the suitability criteria, there are no elements of living lawfully that need to be proven.  

Appendix EU’s ‘settled status’ will be indefinite leave to remain (ILR) for EEA nationals and their family members.  Applications for settled status require someone to show that they have resided in the UK for five continuous years as an EEA national or their family member, and there are no suitability reasons to refuse the application.  

There is no requirement that there is or was any exercise of Treaty rights on the part of the EEA national, which will no doubt assist in the expeditious granting of applications by thousands of applicants, and in this sense can be seen as a positive.  It will also undoubtedly be of assistance to applicants reliant on EEA nationals with incomplete documentation or gaps in their exercise of Treaty rights.

However, it is not yet clear whether this generosity in relation to granting ILR will lead to any problems for applicants if they wish to naturalise as British citizens after being granted this status.  

The British Nationality Act 1981 requires that an Applicant: “… was not at any time in the period of five years ending with the date of the application in the United Kingdom in breach of the immigration laws.”

‘Residence’ in the UK is not the same as ‘lawful residence’, and does not mean there was no breach of immigration law.  Simple residence is also not the same as living in accordance with the EEA Regulations, which set out in detail ways in which EEA nationals are to be recognised as qualified persons, most commonly, as employees, self-employed persons, persons with sufficient resources and comprehensive health insurance, or as students with sufficient resources and comprehensive health insurance.  At present, while the Home Office drafters are aware of this contradiction, no reassurances or amendments to the Act or nationality guidance have yet been published.

Further, the ‘good character’ requirement of a naturalisation application can take any factors into account over the decade prior to application, including whether someone has abided by the law, or evaded immigration control, etc.  The granting of settled status to persons without assessing whether they have abided by the law potentially means that a great deal more documentation will be required in a naturalisation application so that it does not fall for refusal.

Until 31 December 2020, it will still be possible for EEA nationals and their family members who have lived in the UK for more than five years and continuously exercised Treaty rights to apply for permanent residence under the EEA Regulations, which will continue to have application.  This application does involve an assessment of lawful residence, as living in accordance with the EEA Regulations is required. As such, this would meet the residence requirement.

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