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EU nationals must apply for permanent residence card for British nationality applications

Brexit: this blog post is up to date as at 10 October 2016.

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 had possessed permanent residence for a 12 month period and met all the other requirements. Permanent residence is something that one acquires automatically by operation of law after five years of continuous exercise of EU law rights as a worker, self employed person, self sufficient person or student (or mix of any of these); 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 at least 12 months of permanent residence wishes to apply for British citizenship he or she first has to apply for a permanent residence certificate or card. This change was introduced by the British Nationality (General) (Amendment No. 3) Regulations 2015 (SI 2015/1806). The relevant guidance to Home Office caseworkers has also been at least partially updated: see pages 19 and 22 of that document.

Where an application for naturalisation is made without a permanent residence document where one is required, such applications are now being refused. This means that the fee is lost, not refunded. For some time after the change applications were being returned by the Home Office without being refused but that practice has now ended as of 1 August 2016.

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 (see piece by Delphine Dervin). I have also heard that this advice is often wrongly given by Home Office helpline operators. This is not in fact required by the amended regulations, which only require

  1. that the applicant has had permanent residence for at least 12 months; and
  2. 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 naturalisation application but the one year lead-in period begins as soon as permanent residence begins, which is something that occurs automatically whether or not the person applies for a permanent residence card.

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 naturalisation.

Example

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 effect of the UK leaving the EU, she decides to naturalise as a British citizen. She applies for a permanent residence certificate in June 2016 and it is issued in September 2016. As soon as she has the permanent residence certificate, she is eligible to apply for naturalisation (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.

This was also confirmed by the Home Office as correct in an update to the Form AN booklet on 21 September 2016, although it is not exactly very clearly expressed (clarity of expression not being a skill required of the Home Office civil servants who write these things it seems):

If you are a national of a country which is a member state of the EEA or Switzerland, or the family member of such a person, you will automatically have permanent residence status after exercising EEA free movement rights in the UK for any continuous period of 5 years ending on or after 30 April 2006. You should apply for a permanent residence card to prove that you hold that status before applying for citizenship.

But remember that, unless you are married to or the civil partner of a British citizen, you should normally have held permanent resident status for 12 months before applying for naturalisation. This means that you may need to wait until you have been in the United Kingdom for 6 years before you can apply. When you apply for a permanent residence document the evidence that you supply for your EEA(PR) application must be for a 5 year period that ended at least a year before you want to apply for citizenship.

For example:

If you apply for Permanent Residence on 1st December 2015 and want to apply for Citizenship once that application is decided, you should send evidence that shows you were exercising Treaty rights as a qualified person or family member from 1 December 2009 to 1 December 2014.

At the time of writing the relevant Nationality Instruction had been removed from the gov.uk website, presumably for updating (European Economic Area and Swiss nationals in Part 2 of the Nationality Instructions).

Practical effect

As Darren Stevenson writes over on the McGill and Co blog, the change is likely to cause delays:

This will necessitate, unfortunately, an application using form EEA (PR), which is now 85 pages long, to acquire a permanent residence document, before an application for citizenship can be made. This will add delay and complexity. The EEA Caseworking team at the moment is extremely slow.

Darren is undoubtedly right to say that a permanent residence document application will now needed and that this will cause delays. I would not agree that the EEA(PR) form should be used, though. There is an explicit instruction reminding Home Office caseworkers that the form is not necessary and its length, complexity and the degree to which it seeks information to which the Home Office is not entitled for the purpose of gathering potential reasons for refusal all militate against its use. Even the online version of the EEA(PR) introduced in October 2016 still has its disadvantages, as discussed here.

The practicalities of applying for permanent residence and the way in which an application is made are covered in more detail with suggestions on evidence and an explanation of the underlying qualifying criteria in my ebook EU free movement: guide to making an application in the UK.

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 naturalisation unless someone is willing to bring a legal case. Such a case would involve making the naturalisation 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.

There is some doubt as to whether the new regulations are lawful, a topic covered by Professor Bernard Ryan here: Are the latest nationality regulations lawful in requiring permanent residence cards for EU citizens? Essentially, Professor Ryan argues that the requirements of the British Nationality Act 1981 are satisfied when a person holds permanent residence and it is not lawful to impose an additional requirement to hold a permanent residence document as well.

There is also a conflict between the amended British Nationality (General) Regulations 2003 and the Immigration (European Economic Area) Regulations 2006. The latter document states at Schedule 2 paragraph 2(1):

For the purposes of the 1971 Act and the British Nationality Act 1981, a person who has a permanent right of residence under regulation 15 shall be regarded as a person who is in the United Kingdom without being subject under the immigration laws to any restriction on the period for which he may remain.

The language is mandatory (“shall”). Which of these sets of regulations takes precedence? There is a strong argument, particularly when combined with Professor Ryan’s point about the requirements of the Act itself, that it is not lawful to require a permanent residence document to be held.

If you are interested in bringing a legal case, get in touch.

Need help?

Here on Free Movement I try to provide information to help people with their own cases. Those interested in making an EU law application may be interested in my ebook guide making an application and the Application Checking Service provided via Free Movement:

eu-application-guide

immigration application checking service

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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