Updates, commentary, training and advice on immigration and asylum law
EU Settlement Scheme course now available FREE to members
The pathway to British citizenship for European nationals in the UK
Credit: James Giddins on Unsplash

The pathway to British citizenship for European nationals in the UK

Ever since the Brexit vote in June 2016, EU citizens in the United Kingdom have been turning their attention to applications for British citizenship. Foreign nationals who have been living in the UK for five years can apply to “naturalise” as British — but there are other requirements which can complicate things.

How do you naturalise as a British citizen?

The main requirements to naturalise as a British citizen are that the applicant must be:

  • 18 or over
  • meet the knowledge of English and life in the UK requirements
  • meet the residency requirement

Of these, it is often the residency requirement which causes the most confusion and the most problems. This article will consider residency in detail, as well as touching on the good character requirement due to recent issues with Comprehensive Sickness Insurance.

Overview of residency

There are three parts to the residency requirement:

  1. Proving you are settled
  2. Length and legality of residence
  3. Level of absence during the qualifying period

Because of the way that EU law and British nationality law work, there are quirks to each of these requirements which EU citizens interested in naturalising should be aware of. In particular, whether you are married to a British citizen or not makes a difference and whether you applied for permanent residence or settled status can also make a difference.

Proving you are settled

Before applying for British citizenship a person must be legally settled in the UK. This is sometimes referred to as “being free of immigration restrictions”. There are two ways for EU nationals to achieve this:

  1. Possessing a document certifying permanent residence under EU free movement law. This must have been issued before 31 December 2020 and you must make your citizenship application before 30 June 2021; or
  2. Obtaining settled status under the EU Settlement Scheme.

Although the UK left the EU on 31 January 2020 and the transition period came to an end on 31 December 2020, certain aspects of EU free movement law continue to apply until 30 June 2021 (the end of the ‘grace period’). Until then, people who already have a permanent residence document can continue to use this to apply for citizenship.

It is no longer possible to apply for a document certifying permanent residence. If you do not already have one, you must apply for settled status.

eBook Settled Status Handbook (3rd edition)

Full guide to the settled status application process, including screenshots of the app and website and info on citizenship eligibility. Case studies included throughout.

ebook View Now

It is also important to remember that merely applying for citizenship does not give you any particular residence rights under UK immigration law. If you have applied for citizenship based on a permanent residence document you must still apply for settled status before 30 June 2021. Someone who has only a permanent residence document would be living in the UK unlawfully after that date.  Switching to settled status would only be unnecessary if you have been granted citizenship, and attended your citizenship ceremony, by 30 June. But given current decision-making timescales and delays arranging ceremonies due to COVID-19, this is unlikely.

Once settled, the rules on when you can apply for citizenship are different depending on whether you are married to a British citizen or not. The rules are slightly easier to meet if you are married to a British citizen; we’ll start with the rules for those who are not.

Not married to a British citizen

Someone who is not married to a British citizen needs to show that they have been settled for at least one year before applying for citizenship.

Applicants relying on permanent residence can backdate their permanent residence status and apply for citizenship as soon as they receive their permanent residence document. That is because permanent residence is acquired automatically. A permanent residence document is required for the citizenship application, but does not grant the status. It recognises a status which was automatically acquired at some point in the past. That means that anyone with a permanent residence document can apply for citizenship immediately, so long as they have acquired the status of permanent residence at least one year previously.

By contrast, settled status is effective only from the day it is granted. That means having to wait 12 months from getting settled status to apply for citizenship.

After 30 June 2021, it will no longer be possible to rely on a permanent residence document and waiting 12 months after being granted settled status will be the only way to meet this requirement.

Those married to a British citizen

If you are married to a British citizen then you do not need to have been settled for one year before applying for citizenship. The advantage of relying on a permanent residence document, which is that it allows you to backdate your status to a date one year in the past, is therefore unnecessary for those married to a British citizen.

An application for settled status followed by an immediate application for citizenship is the best course of action for anyone who is married to a British citizen and has lived in the UK for over five years.

Length and legality of residence

Now let’s look at the second element of the residence requirement: length and legality of residence.

Length

The residence periods are follows:

  • Anyone who is not married to a British citizen must have resided in the UK for five years prior to the date of their citizenship application.
  • Anyone who is married to a British citizen must have resided in the UK for three years prior to the date of their citizenship application.

This three-year residence period does not affect the separate requirement to prove that you are settled. In practice, everyone who wants to become a British citizen needs to have lived in the UK for five years, as it takes that long to get settlement.

This quirk is due to British nationality law being drafted in 1981, at a time when it was possible to become settled in less than five years. Now virtually all routes to settlement require at least five years’ residence.

The residence period is always counted backwards from the date of application; it is not possible to rely on a historic period of residence. The period must start on a day you were in the UK. This means that you need to make sure that you were in the UK exactly three or five years before you apply.

Example

Samantha is not married to a British citizen. She applies for citizenship on 15 April 2020. The residence period for the purposes of her citizenship application is 16 April 2015 to 15 April 2020. She must have been in the UK on 16 April 2015.

Legality

During the three/five year qualifying period you must not have resided in the UK in breach of the UK’s immigration laws.

You could be forgiven for assuming that EU citizens, with the right to freedom of movement, were unlikely to breach the UK’s immigration laws. But EU free movement law always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you required Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance was widespread.

The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to this rule not being applied to applications under the Settlement Scheme itself.

But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement would be applied to citizenship applications. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance or a European Health Insurance Card issued by their country of nationality during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.

Can the Home Office do this?

This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).

This requirement will not cause a problem for:

  • People who have a permanent residence document already;
  • People who were granted indefinite leave to remain before their country joined the EU, or before permanent residence was introduced;
  • People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
  • People who lived in the UK for five years whilst under the age of 21, whose parent worked in the UK continuously during that same five year period. A person in this category will also have acquired permanent residence (again a historic period can be relied on);
  • People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
  • People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.

This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.

The Home Office recognises this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:

Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assess[m]ent about whether discretion should be exercised in their favour.

One of the examples of when it may be appropriate to exercise discretion is:

the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour.

It is unclear what the last bit is supposed to mean. Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone! Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.

Absence during the qualifying period

If the person applying for naturalisation has been out of the UK for too long, their application will be rejected.

The basic rule, set out in Schedule 1 to the British Nationality Act 1981, is that the applicant must not have been outside the UK for more than 270 days in total over the three-year period for spouses, or 450 days over the five-year period for non spouses, including no more than 90 days in the final year in both cases.

The Home Office will examine both the three/five year qualifying period and the final year before the application separately.

Absences in the final year

The basic rule, as we have seen, is that the applicant cannot have been outside the UK for more than 90 days in the 12 months up to the date of their application. So if applying in July 2021, your absences between July 2020 and July 2021 must fall below 90 days.

The Home Office can, in certain circumstances, grant citizenship even where the 90 day threshold has been exceeded. This can only be done where the “future intentions” requirement has been met.  This is the third bullet point in our summary of the naturalisation requirements right at the start of this post: to qualify for citizenship you must intend to make the UK your home, or if you have more than one home the UK must be your principal home. This requirement is usually met without difficulty, but significant absences during the three or five year residence period or close family living abroad can cause the Home Office to doubt an applicant’s future intentions.

The table below provides a guide for when the Home Office will consider disregarding excessive absences:

Absences Home Office approach
90 to 100 days absence in final year Home Office guidance states that absences of up to 100 days during the final year of the qualifying period will normally be disregarded.
100 to 180 days absence in final year Discretion may be exercised if the total number of absent days over the 3/5 year qualifying period is not exceeded, and the applicant “demonstrates strong links through the presence of family, employment and their home in the UK”.
100 to 180 days absence in final year Discretion may be exercised even if the total number of absent days over the 3/5 year qualifying period is exceeded if the applicant has “demonstrated that they have made this country their home by establishing a home, employment family, property and finances in the UK” and where the absence is justified by Crown service, or “by compelling occupational or compassionate reasons, including inability to travel because of a global pandemic”.
Over 180 days absence in final year (but the absence threshold across the 3/5 year qualifying period is not exceeded) Discretion may be exercised if the applicant has demonstrated that they have made the UK their home.
Excess absences for final year and qualifying period Discretion may be exercised only in exceptional circumstances and where the applicant has demonstrated that they have made the UK their home.

As the table shows, assuming the future intentions requirement is met, the Home Office will usually grant the application where the absences are under 100 days. They will also consider granting an application where absences are between 100 and 180 days. The decision-maker will look at whether the absence threshold for the three/five year residence period (see below) has been met, consider the reason for the absences, and assess the strength of your connection to the UK to determine whether you should be granted citizenship, despite your excessive absences.

If your absences are over 180 days in the year before you apply, and you also fail to meet the threshold over the three/five year residence period, your application will only be granted in “exceptional circumstances”. It is incredibly difficult to convince the Home Office that such circumstances exist.

Absences over the whole three/five qualifying years

For the second period examined, as with the length of the residence periods, the number of absences permitted depends on whether or not you are married to a British citizen.

Not married to a British citizen

Those who are not married to a British citizen need to show that they have not been absent from the UK for more than 450 days during the five year residence period.

Again the Home Office can, in certain circumstances, grant citizenship even where this threshold has been exceeded. The table below shows how the Home Office will consider such applications:

Absences Home Office approach
450 to 480 days total absence Home Office guidance suggests that absences of up to 480 days will normally be disregarded.
480 to 730 days total absence Discretion may be exercised where the applicant has been resident for the previous seven years, without substantial absences within the first of those seven years (the two years outside the normal qualifying period).
730 to 900 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous eight years, without substantial absences within the first three of those years (the three years outside the normal qualifying period).
480 to 900 days total absence Discretion may be exercised to waive the requirements in the following circumstances:

– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK),

– exceptionally compelling reasons of an occupational or compassionate nature to justify the application being granted, such as a firm job offer where British citizenship is a statutory or mandatory requirement, or

– the excess absences were because the applicant was unable to return to the UK because of global pandemic.

For any exercise of discretion above 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If your absences are over 900 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.

Those married to a British citizen

Those who are married to a British citizen need to show that they have not been absent from the UK for more than 270 days during the three-year residence period.

Absences Home Office approach
270 to 300 days total absence Home Office guidance suggests that absences of up to 300 days will normally be disregarded.
300 to 450 days total absence Discretion may be exercised where the applicant has been resident for the previous four years, without substantial absences within the first of those four years (the year outside the normal qualifying period).
450 to 540 days total absence Discretion may be exercised where the applicant has been resident in the UK for the previous five years, without substantial absences within the first two of those years (the two years outside the normal qualifying period).
300 to 540 days total absence Discretion may be exercised to waive the requirements in the following circumstances:

– absences due to posting abroad on Crown Service,

– the unavoidable nature of the applicant’s career (e.g. a job that requires regular travel out of the UK),

– exceptionally compelling reasons of an occupational or compassionate nature, such as a firm job offer where British citizenship is a statutory or mandatory requirement, or

– the excess absences were because the applicant was unable to return to the UK because of global pandemic.

For any exercise of discretion over 30 days, the Home Office policy states that the applicant must show that they have “established their home, employment, family and finances in the UK”.

If absences are over 540 days it is “highly unlikely that discretion would be appropriate” and you would be better off wait until your absences fall below this threshold before applying.

Those who have not yet reached five years’ residence

If you will reach five years’ residence before 30 June 2021, then you can apply for settled status once you have reached the five year threshold. If you will not reach five years’ residence until after 30 June 2021 you must apply for pre-settled status. Once five years has been reached you can then apply for settled status and then citizenship (immediately if you are married to a British citizen or after a year if you are not).

Good character requirement

As part of the good character requirement, the Home Office will consider whether you have breached immigration law. They will look at your entire period of residence in the UK, or the last ten years; whichever is shorter. To avoid a breach of immigration law, EU nationals must show that their residence has been in accordance with EU free movement law, as implemented in the UK by the Immigration (EEA) Regulations 2016 (or their 2006 predecessor).

As noted above, for your residence to be lawful you must have been working, looking for work, studying, or self-sufficient. If studying or self-sufficient, you must have held Comprehensive Sickness Insurance (CSI).

As with the lawful residence requirement above, this will not cause a problem for people who were granted indefinite leave to remain over ten years ago, people who have already been issued with a document certifying permanent residence, or people who have been continuously working during their UK residence.

eBook Naturalising as a British citizen: a guide

Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.

ebook View Now

But if you have a period of study or self-sufficient falling within the last ten years, or there are lengthy gaps in your employment, you may need to consider the CSI requirement more carefully.

If you can establish that the CSI requirement does not apply to you, for instance because you have been working, it is still necessary to submit evidence of this with your citizenship application (e.g. P60 certificates). If you can show that you were engaged in genuine and effective work (even part-time or seasonal work, or work during your studies) during any five year period, you will not need CSI. If relying on a historic five year period of employment, you will also need to show you have not been absent from the UK for a continuous period of two years since acquiring permanent residence.

It is not necessary to have a permanent residence document in order to show that the CSI requirement does not apply, as permanent residence is acquired automatically.

If the CSI requirement does apply to you, the fact that you did not hold private health insurance is not necessarily fatal. The requirement can be met by showing you held a European Health Insurance Card during the period of study or self-sufficiency (providing this was issued by your country of nationality, rather than the UK). It is also sometimes possible to show that your home country would have covered the cost of healthcare if you had become ill (this can be done by obtaining Form S1 or Form E104 from your home country).

If all else fails, you can ask the Home Office to exercise discretion and grant your application notwithstanding the breach of immigration law due to lack of CSI. As noted above, the criteria for the exercise of discretion are poorly defined. If there is no pressing need to apply for citizenship now, it may be better to wait until the requirement is met (i.e. once your period of studying or self-sufficiency falls outside of the last ten years).

See John’s post here for more information on this change of policy from the Home Office, and the problems it is causing for EEA nationals applying for citizenship.

Further reading

There are different requirements for acquiring permanent residence, applying for settled status, and applying for citizenship. This post does not examine all of the separate requirements in detail, so some further reading may be necessary.

The requirements for permanent residence are covered in detail in a post last updated in February 2018. Nath provides details of the requirements for pre-settled and settled status in this recent piece (if criminal convictions are likely to cause an issue for you, see also Colin’s piece from February 2019).

Finally, for further detail on the citizenship requirements check out the Free Movement guide to naturalising as a British citizen. Much of the material for this post has been drawn from this guide. It contains worked examples of common residence requirement issues in naturalisation applications, as well as covering the rest of the naturalisation criteria. It is available to download free to members, or for £9.99 for non-members.

This article was originally published in April 2019 and has been updated so that it is correct as of the new date of publication shown.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

There are comments on this article.

Only members can view and comment on articles, as well as many other benefits.

Explore membership now
X
Not yet a member?

Get unlimited access to articles, a thriving forum, free e-books, online training materials with downloadable training certificates, and much more.

Worried about preparing an immigration application yourself?

Try our Full Representation Service, provided by Seraphus Solicitors.

Join Now

Benefits Include

  • Clear, transparent fees
  • Fees fixed for each stage of your application or appeal
  • Personal client web access page and messaging system
  • Online payments, document upload & video calls
  • Expert representation
Shares