As was reported on Free Movement last month, the British Nationality (General) (Amendment No. 3) Regulations 2015, have made it harder for persons with an EU law-based right of permanent residence to naturalise as British citizens. That is the consequence of a new requirement that such persons first obtain a residence document as evidence of their right, even though such a document is unnecessary for residence as such. It seems likely that this change is a response to increased numbers of EU citizens naturalising as British citizens in recent years – up from 2,714 in 2008 to a high of 13,985 in 2013, before a fall to 7,380 in 2014.
This post will question the lawfulness of the new requirement, arguing that it cannot be achieved by an amendment of secondary legislation, but instead requires a reform of the parent British Nationality Act 1981.
The right of permanent residence is based upon Articles 16-18 of the Citizens Directive, which took effect on 30 April 2006. In most circumstances, the right arises after five years’ qualifying residence under the Directive. A person with the right is entitled to reside in a Member State without meeting the qualifying conditions for ordinary residence in the Directive. The right is lost only after absence from the Member State in question for two years, or as a result of a public order expulsion.
These provisions benefit EU citizens and qualifying family members from other states, irrespective of nationality. They also apply to nationals of Iceland, Liechtenstein and Norway, and their qualifying family members, by virtue of a decision of the EEA Council of 7 December 2007.
It is not in doubt that the right of permanent residence is directly effective as a matter of EU law, as the conditions for acquisition and retention of the right are clear, and the state is its addressee. Accordingly, for those who are eligible, the right takes effect in the United Kingdom by virtue of section 2(1) of the European Communities Act 1972.
In the United Kingdom, the right of permanent residence is provided for in Regulation 15 of the Immigration (European Economic Area) Regulations 2006. In addition to guaranteeing the right for those who are protected at the EU level, the 2006 Regulations benefit several further groups, including the nationals of Switzerland (and their family members).
Articles 19 and 20 of the Citizens Directive provide for the issuing of a form of residence document as evidence of a right of permanent residence. In the case of EU citizens, this is called a “document certifying permanent residence”, while in the case of non-EU family members, it is described as a “permanent residence card”. In the United Kingdom, these documents are provided for by Regulation 18 of the EEA Regulations.
The right of permanent residence does not though depend upon the acquisition of these documents. That is because EU free movement law treats residence documents as declaratory, rather than constitutive, of rights of residence (see the judgments in Royer and Dias). The Directive permits sanctions for a failure by a non-EU national to apply for a permanent residence card, but that option has not been taken up by the United Kingdom.
From permanent residence to British citizenship
Possession of the right of permanent residence is potentially relevant to the acquisition of British citizenship where that depends upon a person’s not being “subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom”. This test is one of the requirements to be met by an applicant for naturalisation as a British citizen. It must also be met by a non-British parent, if a child is to acquire British citizenship on the basis of the parent’s being settled, whether automatically at birth, or through registration while a minor.
Prior to the 2015 Regulations, it had been assumed that possession of the right of permanent residence meant that a person met the test of not being “subject under the immigration laws to any restriction on the period”, for the purposes of the 1981 Act. That understanding was reflected in a statement to that effect in Schedule 2 of the EEA Regulations.
The new requirement in the 2015 Regulations
The 2015 Regulations as a whole make a series of changes to the British Nationality (General) Regulations 2003. The provision of relevance to permanent residence is Regulation 7. Leaving aside some unusual cases, its effect is that, for naturalisation applications made on or after 12 November 2015, the right of permanent residence must be evidenced through the forms of document issued under the 2006 Regulations. The statement in the 2006 EEA Regulations has though been left unaltered, and there has been no attempt to alter the position as regards the acquisition of citizenship by children.
The practical significance of the amendment is considerable, as it obliges persons who are long-term residents under EU law, and who wish to take out British citizenship, to first obtain a residence document. That requires completion of an 80-page form, submission of a range of supporting documents, payment of £65 per person, and temporarily giving up a passport or identity card. The process is also subject to delay, including because the Directive and the Regulations give state authorities six months to issue non-EEA permanent residence cards.
Can they do that?
It is therefore important that there are at least two legal doubts as to the lawfulness of the new requirement.
The first is that Regulation 7 does not appear to be covered by the Regulation-making powers listed in the 2015 Regulations. It appears to be based upon section 41(1)(b) of the 1981 Act, which permits the Secretary of State to make Regulations “prescribing the manner in which … applications for registration or naturalisation … may or must be made”. The difficulty is that Regulation 7 is not simply about the “manner” in which an application is made, but has instead introduced a new pre-condition to naturalisation. It stands out by comparison with the 2003 Regulations as a whole, which are concerned with essentially procedural matters.
The second problem is that Regulation 7 conflicts with the meaning given in the 1981 Act to the phrase “subject under the immigration laws to any restriction on the period for which he might remain”. That phrase is to be read together with this definition of the “immigration laws” in section 50 of the 1981 Act: “the Immigration Act 1971 and any law for purposes similar to that Act which is for the time being or has at any time been in force in any part of the United Kingdom”.
That definition arguably covers directly effective residence rights acquired under the Citizens Directive, the 2007 EEA decision, and the implementing EEA Regulations, as these are all “law[s] for purposes similar to” the Immigration Act 1971.
The section 50 definition of the “immigration laws” also presumably covers section 7 of the Immigration Act 1988. It provides that a person does not require leave under the Immigration Act 1971, if they are entitled to enter or remain because of a directly effective EU right, or implementing measures adopted under the European Communities Act 1972, such as the 2006 Regulations. This inclusion of section 7 of the 1988 Act is significant because it provides a further basis for rights of permanent residence in UK law.
It follows that, once a person has the right of permanent residence, they are already without restrictions under the “immigration laws”, and therefore eligible for naturalisation. In the absence of express authority in the 1981 Act, that legal right cannot be displaced by a statutory instrument made under it.
A need for primary legislation
A requirement to obtain a permanent residence document, as a pre-condition to effects in nationality law, is presumably acceptable under EU law, as that does not purport to regulate the acquisition of member state nationality.
At the domestic level, however, such a change cannot be achieved other than by an amendment of the British Nationality Act 1981 itself. That in turn would permit a full public and parliamentary debate about the desirability of such a change, which would inevitably have to address its full implications, both for adults and for children.