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New nationality guidance complicates post-Brexit applications

  • United Kingdom
  • Employment law
  • Global mobility and immigration

26-05-2020

European Economic Area citizens resident in the UK have been able to apply to remain in the UK at the end of the transition period through the EU Settlement Scheme since the end of 2018. For those who would like to consider becoming British citizens, new guidance was published last week by the Home Office which will be relevant.

There is no requirement for an EEA citizen to apply to become a British citizen, a process known as naturalisation, but many have told us that they would like to do so. Becoming a British citizen allows the right to vote in a General Election and the individual to remain out of the UK for an unlimited period without losing the right to return. Those who would like to naturalise are wise to consider the impact of becoming British on their existing citizenship, since each country has its own rules on nationality and there may be other implications, on social security status for example.

This new guidance relates to how officials will assess applications for British citizenship from European Economic Area citizens seeking to become British based on residence. There are a number of requirements for a naturalisation application; one of the more complex is that the applicant must demonstrate both the right to permanent residence in the UK and lawful presence throughout the previous three or five years. An EEA citizen who has obtained permanent residence through the EU Settled Status Scheme will be able to meet the former requirement if applying for British citizenship but, according to this guidance, that will not automatically establish legal residence (in Home Office terms) throughout the period. Applicants will still need to show they exercised a right to residence in the UK according to EU Law throughout that period as a worker, student, self-sufficient person or a jobseeker.

This bring us to the EU legal requirement of “comprehensive sickness insurance” as a criterion for legal residence. This is a tricky area as it is common for EEA citizens emigrating to the UK as either students or self-sufficient people to allow health insurance to lapse, since this is not a requirement of receiving care in the UK. The EU Settlement Scheme pays no attention to comprehensive sickness insurance at all so its relevance in the future stay of an EEA citizen in the UK became low. This change in the Home Office guidance will, however, bring it back to relevance for those who wish to be a British citizen.

This is a surprising interpretation of the requirements and one likely to prevent many EEA citizens well established in the UK from qualifying for British citizenship for several years. Nationality applications tend to be straightforward for most applicants, but this policy may complicate the requirements for many.

Employers who have been proactive in supporting their employee through the Brexit process may wish to bring this change to the attention of their employees.

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