Brand

Immigration Solicitors London

Est. 2002

+44 (0)20 7038 3980

info@rlegal.com

RLegal Solicitors, 162-168 Regent Street London W1B 5TG

RLegal is regulated by the SRA, Reg No: 00380691

On 15 May 2020, the Home Office updated its guidance on naturalisation applications for British citizenship, by EEA nationals who have been granted ‘settled status’ through the EU Settlement Status Scheme (“EUSS”), which will have significant and arguably harsh implications - whilst we are in the middle of a pandemic.

 

The previous Conservative government of Theresa May introduced the EUSS to provide EEA nationals an opportunity to regularise their stay at no cost through an electronic process, instead of through the EEA Regulations 2016 (the “Regulations”).

 

A simplified overview of the EUSS, is that it only requires an individual to:

 

  • provide ID documentation,
  • be subject to meeting a suitability requirement, and
  • to have been resident in the UK for a period of five years.

 

The Regulations on the other hand, require an individual to prove they have exercised an EEA ‘’Treaty Right’ for the same period through:

 

  • employment as an employee,
  • working through self-employment,
  • demonstrating they are ‘economically self-sufficient’, or
  • students in certain circumstances.

 

Although the EUSS had some merit, as the electronic procedure placed emphasis on the government to check its records, nothing was publicly stated about how this would impact a future nationality application. Perhaps understandably there has been a high take up of it, according to a media fact sheet dated 19 March 2020 by the Home Office, 3.5 million people had applied through it with 3.2 million successful applications by March 2020 – significant numbers!

 

Now more or less one year later of the EUSS going live – coincidentally, the period one needs to hold settled status in order to apply for naturalisation as a British citizen unless married to a British citizen - and in advance of one would assume a considerable number of applications for naturalisation as a British citizen, we are served up with this.

 

The Home Office will now expect applicants to have complied with the immigration laws as stated below:

 

‘However, this grant of settled status (also know 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.’

 

One should question why the Government would take such a position – oddly enough insisting that EU nationals granted ‘settled status’ through the EUSS under UK domestic law, should now demonstrate they were compliant with the EEA laws through the Regulations!

 

Applicants who applied through the Regulations will not have their applications for naturalisation subject to the same level of scrutiny.

 

EU Nationals granted settled status and applying for naturalisation will need to proceed with caution as they will need to show they have satisfied EU laws but may be unable to do so. They may fall into various categories:

 

  • those whose employment records are questioned,
  • those who did not have private health insurance during their stay,
  • those who have gaps in employment,
  • those who were absent for period at a time,
  • those returning to employment after training,
  • those returning to employment after giving birth,
  • those reliant on third parties – who they may no longer be in contact with
  • those granted through derivative rights.

 

The above is by no means a comprehensive list but demonstrates pitfalls ahead.

 

Given the application fee alone is £1330, some are going to feel short changed if denied.

 

At time of writing there is a significant debate relating to whether overseas nationals working for the NHS and care workers should have to pay the Immigration Health Surcharge. One can imagine scenarios where such individuals could end up being refused nationality at considerable cost and having their settled status questioned!

 

It is likely the Government could face significant legal challenges, but apart from an internal review at a cost of £372, the only practical remedy for an individual denied naturalisation will be through the UK’s domestic courts, by way of an expensive Judicial Review. Appealing a purely domestic procedure in the European Courts is going to be a big ask, but is not improbable – it would be another turn of events to see the European Court of Justice being asked to make a decision on British law – the Government would no doubt strongly resist.

 

For now, individuals granted settled status should check to see they were compliant with the Regulations prior to submitting their applications for British citizenship.

 

RLegal Solicitors have assisted clients with application for permanent residence, settled status and for naturalisation as a British citizen. If you would like further advice please call us on +44 207 038 3980 by contacting us on line or by email to info@rlegal.com