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British citizenship after obtaining EU Settled Status

EU Settled Status is a relatively new form of indefinite leave to remain (ILR) for which EEA nationals and family members have to apply by 30 June 2021.  In this post we look at how to obtain British citizenship after obtaining EU Settled Status.

A route to ILR not requiring lawful residence

EU Settled Status applications assess the continuous residence of the EEA national or family member, and, unlike permanent residence applications under the EEA Regulations, do not require proof of an exercise of Treaty rights. 

This is important, as we mentioned previously, here.  The main reason it is important in relation to British citizenship is because ‘residence’ is different from ‘lawful residence’. 

Impact on naturalisation applications

Finally, the Home Office has recognised that Settled Status is not proof of lawful residence in the preceding years.  On 14 May 2020, the Home Office published updated Guidance on Naturalisation as a British citizen by discretion: 

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. 

A person granted pre-settled status may have dual running rights under both UK immigration rules (in accordance with their grant of pre-settled status) and the EEA Regulations during their residence – once granted pre-settled status, they will not need to demonstrate that they were exercising a treaty right. To assess whether the person was here lawfully in accordance with the EEA Regulations (if required) prior to their grant of pre-settled or settled status you must look at the guidance on EEA/Swiss nationals and their family members. This includes the type of evidence you can take into account.You must assess whether the applicant was lawfully resident under the EEA Regulations in accordance with that guidance and therefore lawfully in the UK for any residence prior to the grant of pre-settled status, or settled status. 

If the information is not provided with the application form, you must request it. 

You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here: 

  • as a qualified person (such as a worker, student, self-employed, selfsufficient, retired or incapacitated person) 
  • as the family member of such a person. 

Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI).”

This raises several interesting points: people who are granted EU pre-settled status don’t have to prove an exercise of Treaty rights after this time, they only need to prove they had EEA rights before they were granted leave under the Immigration Rules. 

Where EEA Applicants have lived in the UK for a long time and applied for settled status without ever having been granted a document to show their right of permanent residence, they could well be asked to provide further evidence to prove their lawful residence in the years prior to a naturalisation application. 

For students and the economically inactive, a lack of health insurance – comprehensive sickness insurance (CSI) – could be a problem. 

In relation to this specific issue, there is some discretion: 

“CSI is a legal requirement for EU, EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them.The form asks the applicant if they had comprehensive sickness insurance during their time spent in the UK. Those who answer no should have provided an explanation in the box provided. This will include people who previously applied for permanent residence and were refused on the basis of not having CSI. 

You must consider why the applicant did not have comprehensive sickness insurance. Where someone has been granted ILR under the EUSS but has not been resident here in accordance with the EEA regulations (prior to grant of pre-settled status or settled status) due to a lack of comprehensive sickness insurance you should consider whether it is appropriate to exercise discretion in their favour. 

Some applicants will have previously had an application for a document to confirm their permanent residence refused, on the basis of not having CSI. You must assess the reasons given for this, and why they did not then obtain it, and consider whether there are compelling grounds to exercise discretion. “

There could well be many other good reasons for which an EEA national would not be a ‘qualified person’ throughout the relevant five year period – redundancies, time off work to care for children or another family member, among others.

Discretion to waive immigration breaches

The new Guidance does envisage a significant number of potentially problematic naturalisation applications by EEA nationals or their family members.  

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.

The most relevant consideration for discretion listed is: 

  • 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

However, even if discretion is exercised in an applicant’s favour, this is only in relation to the assessment of Immigration Breaches, rather than the more encompassing ‘good character’ requirement:

Where the residence requirement is met with or without the exercise of discretion, it is then a separate test whether the person meets the good character requirement, and a history of non-compliance with immigration requirements is a factor to be weighed in that decision. 

Applicants for naturalisation holding EU Settled Status where there has been a gap in exercise of Treaty rights during the relevant five year period will have to prepare carefully and address any issues in full to give an application the best prospects.  

For EEA nationals who have exercised Treaty rights in the UK for any continuous five year period, a permanent residence application is still a viable option, and means that the lawfulness of residence is assessed.  Permanent residence applications also have the advantage that they can be backdated – the ‘deemed date’ of acquisition is the date at which the right was acquired, which is different from the date the application is granted. 

Contact our Settled Status and Nationality Lawyers

For expert advice in relation to an EU Settled Status or British citizenship application, contact our immigration barristers & lawyers in London on 0203 617 9173 or complete our enquiry form below.

SEE HOW OUR IMMIGRATION BARRISTERS CAN HELP YOU

To arrange an initial consultation meeting, call our immigration barristers on 0203 617 9173 or fill out the form below.

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