The British Nationality Act 1981 requires a successful applicant for British citizenship to show, amongst other things, that he or she is free from immigration restrictions. Technically, the requirement is set out in paragraph 2(c) of Schedule 1 to the British Nationality Act 1981, which requires an applicant to show:
that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom
Citizens of EU and EEA countries and their family members were until 12 November 2015 able to qualify once they have achieved the required five or three years of residence, possessed permanent residence for the last 12 months of that period and met all the other requirements. Permanent residence is something that one acquires automatically by operation of law if the criteria are met; there is no need to formally apply for it and it is not conferred or granted by the British authorities but by automatic operation of EU law.
To put it another way, just as a passport acts as evidence of nationality the holder already possessed, a permanent residence document is evidence of the pre-existing right of permanent residence.
Change to evidence required
From 12 November 2015, however, if a person with permanent residence wishes to apply for British citizenship he or she will have to first apply for a permanent residence certificate or card. This change is introduced by the British Nationality (General) (Amendment No. 3) Regulations 2015 (SI 2015/1806).
A similar change was then introduced by Statement of Changes to the Immigration Rules HC535 for EEA nationals sponsoring a family member under the Immigration Rules from 12 November 2015 onwards. This will probably affect few people because EU free movement law is a more powerful tool for family migration than the UK rules.
Timing of applications once document obtained
Some applicants have apparently been finding that Home Office officials will only permit naturalisation applications to be made at least one year after a permanent residence card is issued. This is not in fact required by the amended regulations, which only require
- that the applicant has had permanent residence for at least 12 months; and
- that the applicant possesses a permanent residence certificate or card
It is clearly necessary to possess a permanent residence certificate or card to make the naturalization application but the one year lead-in period begins as soon as permanent residence begins. For example, if the underlying right of permanent residence has already existed for a year prior to the date of issue of the card then an application can be made as soon as the card is issued. If the applicant has possessed permanent residence for six months when the card is issued, he or she will need to wait a further six months from the date the card is issued before applying for naturalization.
Cecile is a French national. She has resided in the UK since 2002 as a worker; she found a job within weeks of arriving and has worked more or less continuously ever since, with a short break of a few weeks between jobs.
She automatically acquired the right of permanent residence in 2007, five years after she entered the UK. She never applied for a permanent residence certificate because she did not need to.
Worried about the possibility of the UK leaving the EU, she decides to naturalize as a British citizen. She applies for a permanent residence certificate in January 2016 and it is issued in March 2016. As soon as she has the permanent residence certificate, she is eligible to apply for naturalization (assuming she meets the other criteria, such as good character). This is because she now has a permanent residence certificate and she has had permanent residence since 2007, which is more than the required 12 months.
This interpretation was confirmed as correct in response to a Freedom of Information response:
I can confirm that a person acquires permanent residence following 5 years’ residence in accordance with the EEA Regulations, not on the date they obtain a residence card. The date that they were deemed to have acquired permanent residence will be recorded on UKVI’s database and so will be clear to the nationality caseworker. This means that a person who has been resident in the UK for some time can send evidence that they were resident in the UK for a 5 year period ending at least 12 months before they want to apply for citizenship, and can then immediately apply for citizenship.
Is the change lawful?
The reality is that the Home Office will enforce the requirement to hold a permanent residence document at the time of application for naturalization unless someone is willing to bring a legal case. Such a case would involve making the naturalization application without a permanent residence card but with permanent residence, inevitably being refused and then beginning an application for judicial review. It is not a quick process nor a cheap one, and if you were to lose you would have to pay the government legal costs as well as your own.
If you are interested in bringing a legal case, get in touch.
If the Government and people of Britain vote to leave the European Union and you have obtained a document certifying permanent residence in the UK you may be better protected to remain in the UK indefinitely. The changes of immigration policy and legislation if UK exits the EU are still unknown but as an EU national with Permanent Resident it may provide some peace of mind and ease your concerns to know that you will not need to evidence your right to permanent residence should the UK exit the EU.
If you think that you may have entitlement to Permanent Residence in the UK and you would like to apply for permanent residence card; or if you have any questions in relation to your immigration status in the UK as a European national please feel free to contact our team of advisers and we will gladly assist you to obtain the best outcome.
Give us a call on 020 3695 4626