Long before the United Kingdom terminated its relationship with the European Union, foreign nationals originating from EEA countries, had a more flexible choice whether to obtain British Citizenship or continue to reside in the country as a foreign individual exercising treaty rights granted under Citizens' Rights Directive, for an indefinite time.
However, starting from June 2016, when the UK chose to be independent of the European Union after over 40 years of membership, all third-country citizens exercising their treaty rights in the UK had to start re-considering their rights to continue their residence.
The free movement right which is granted to EU, EEA and Swiss nationals to reside in the UK has its legal terms set out under EEA Regulations 2016. Indeed, not all EU, EEA and Swiss nationals are automatically qualified for a continued residence in the country.
What makes a qualifying person?
An EU, EEA or Swiss national who has entered the UK does not need a valid permit to do so for up to three initial months of residence. Further to this initial right of admission, EU, EEA and Swiss nationals must prove that they meet specific criteria to be lawful in-country.
A qualified person would be:
- A student who holds a valid European health insurance card (EHIC) or comprehensive sickness insurance (CSI);
- A self-sufficient person who holds a valid European health insurance card (EHIC) or comprehensive sickness insurance (CSI);
- A worker under PAYE;
- A self-employed person;
- Registered Jobseeker (for up to 6 months)
All other individuals who have been residing in the UK without meeting one of the above categories were instead (intentionally or not) abusing their right of admission in the UK.
British Citizenship Requirements
Although for years the UK has not taken action against those EU, EEA or Swiss nationals who remained unlawful in the country, the new changes made to the UK Citizenship guidance highlight that obtaining British Nationality might not be a straight forward task anymore.
The new guidance published on 30 September 2020, maintains that the general requirements to obtain British Citizenship for an EU national (not married to a British Citizen) are:
- Completing a minimum of 5 years lawful residence in the country;
- Absence of less than 450 in the whole qualifying period;
- Absence of less than 90 days in the last 12 months before application;
- Free from immigration control at least 12 months before application;
- Have an intention to continue to live in the UK;
- Meet the knowledge of English and life in the UK requirements;
- Being a person of Good character
The applicant, if married to a British Citizen is required to meet the reduced lawful residence qualifying period of 3 years and absence requirements of less than 270 days during the that period.
Settled Status vs EEA Permanent Residence
Under the new system to obtain Indefinite Leave to Remain in the UK - Appendix EU, commonly known as the EUSS, the Home Office has now drawn more attention to lawful residence & good character requirement.
The EU nationals and family members who obtained Settled Status under Appendix EU were only required to show that they have been resident in the UK for a period of 5 years, unlike permanent residence applications under the EEA Regulations 2016 that required applicants to show that they were exercising treaty rights and being a qualified person as mentioned above.
The Home Office has confirmed that settled status is not proof of past lawful residence in the UK and the latest guidance confirmed that the applicants will need to demonstrate they were exercising treaty rights for their period of residence prior to the grant of pre-settled or settled status (during their stay under EEA Regulations).
Naturalisation under Discretionary provisions
The new policy doubles the period of time, from five years to ten years, during which certain EU citizens in the UK must have held comprehensive sickness insurance (CSI) or a European health insurance card (EHIC) issued by an EU country, in order to qualify for citizenship. The updated guidance continued to confirms that individuals who did not hold CSI cover are considered to have been in the UK in breach of immigration laws – however the guidance does seem to imply that there may be discretion to waive this requirement if the applicant can ‘provide sufficient evidence to justify discretion being exercised in their favour’. It remains unclear what type and amount of evidence would be sufficient and the scope of such discretion.
Applicants for naturalisation holding EU Settled Status where there has been a gap in the exercising of Treaty rights during the relevant period will have to prepare carefully and address any issues in full to give an application the best prospects.
Please get in touch with our award-winning team on 0330 058 3929, if you need any assistance on British Citizenship or any other immigration matter.