Introduction

 For EU Citizens who secure Settled Status in the UK under the provision made in Appendix EU of the Immigration Rules the path to a further stage of integration, naturalising as a British Citizen, is strewn with rocks and boulders, most of which are placed in their way by the Home Office rather than Parliament. There are outrageous fees of course, £1,330 for a single adult. These are set by the Home Office at well over the cost of processing the application. And then, before a naturalisation application may be granted, there are the various discretions and evaluative judgments conferred by the Parliament on the Secretary of State: discretions to disregard excess absences from the UK and breaches of immigration law in the period prior to applying, discretion to overlook periods of time subject to time restrictions in the final year, and an evaluative role to set and apply the policy as to when an applicant is to be judged to be of good character.

The Secretary of State has published policies as to how she will deal with these discretions and evaluative judgments when deciding applications. As regards the discretion to disregard breaches of the immigration laws in the period of presence in the UK prior to application, she has made life particularly difficult for EU Citizens with Settled Status. Her choice to do so is deliberate and particular. There were and are other options. Her policy pays scant regard to the fact that EU Citizens in the UK prior to the end of the Brexit transition period (31 December 2020) are here in the exercise of EU Citizenship rights rather than as migrants and it pays scant regard to her own prior practice in that regard. What has the Secretary of State done and why is it wrong?

EU Citizens and UK Settled Status

 EU Citizens and their family members in the UK prior to the end of the Brexit transition period (31 December 2020) may obtain Settled Status in the UK under Appendix EU of the Immigration Rules. ‘Settled Status’ is really just a form of branding, what is actually conferred is indefinite leave to enter or remain under section 3 of the Immigration Act 1971. For EU Citizens Settled Status is conferred, generally speaking, on proof of five years’ presence in the UK. An applicant does not have to prove exercise of an EU right to reside (e.g. as a worker, self-employed person, self-sufficient person, etc.) during that period. Under the Withdrawal Agreement, see Articles 13 and 38, the UK could have required EU Citizens seeking Settled Status to satisfy the condition of five years’ exercise of an EU right to reside. But it has chosen not to do so. That is a good thing.

However, in the result, an EU Citizen who enters the UK with the right of admission under the EU Treaties and the free movement Directive (2004/38/EC) need not account for their immigration status in the UK thereafter. That is fine when seeking Settled Status. But it is not fine, when seeking to naturalise as a British Citizen. Why is that?

The Naturalisation Trap

Under the British Nationality Act 1981 (the 1981 Act), a person applying for naturalisation must not in breach of UK immigration laws in the prescribed period down to the date of application (ordinarily five years, three years where relying on being the spouse of civil partner of a British citizen). Whether or not a person is in breach of the immigration laws is determined by whether or not a person has a status falling within section 50A of the 1981 Act. In essence, an EU Citizen needs to have been exercising an EU right to reside (e.g. as a worker, self-employed person, self-sufficient person, etc.) or have had a domestic form of leave to enter or remain the in the UK throughout that period (NB there are other forms of lawful residence as well).

An EU Citizen who enters the UK in reliance on a right of admission arising under EU law may well not have had an EU right to reside or UK leave throughout the five-year period. Thus, for the purposes of making an application as a British Citizen she will have been in breach of UK immigration laws for periods of time. An EU Citizen who has worked for five years in the UK will not face this problem. But for one who has been in and out or work for periods of time without retaining EU Worker or Self-employed status, or for one seeking to rely on EU rights to reside as a Student or a Self-sufficient person, the position is different. Such a person will have to show that they were self-sufficient and that includes a requirement that a person has held Comprehensive Sickness Insurance (CSI) during these periods.

While as regards the immigration status and presence in the UK of such persons, the Home Office has not troubled itself unduly about possession of CSI; indeed some Students were issued Registration Certificates without any CSI requirements while others have been simply continued to reside in the UK without any objection, for the purpose of applying for naturalisation as a British Citizen, an EU Citizen must possess CSI in any period where they seek to show they were exercising an EU right to reside on a self-sufficient basis.

As noted above, the Secretary of State has a discretion to disregard breaches of UK immigration law when considering an application for naturalisation as a British Citizen. She has published a policy as to when she will exercise discretion and it is version 5.0 of that policy, Nationality policy: Naturalisation as a British citizen by discretion published on 15 May 2020 that bears down on EU Citizens.

The Home Secretary’s Policy towards EU Citizens

 In her policy as to the circumstances in which discretion will be exercised to disregard breaches of UK immigration laws, the Secretary of State states:

“You must consider why the applicant did not have comprehensive sickness insurance. Where someone has been granted ILR under the EUSS but has not been resident here in accordance with the EEA regulations (prior to grant of pre-settled status or settled status) due to a lack of comprehensive sickness insurance you should consider whether it is appropriate to exercise discretion in their favour.

Some applicants will have previously had an application for a document to confirm their permanent residence refused, on the basis of not having CSI. You must assess the reasons given for this, and why they did not then obtain it, and consider whether there are compelling grounds to exercise discretion.”

This is hopeless. It does not tell you in what circumstances discretion will be exercised, what factors will be taken into consideration, and what weight will be given to them. How is one to know the basis on which it will be ‘appropriate ‘to exercise discretion? Or when there will be ‘compelling grounds’? Will simply now knowing about the need for CSI be enough? If so, say so. Is the applicant supposed to guess? At £1,330 an application for naturalisation is an expensive business and an opaque policy that leaves the applicant having to risk such a fee without knowing when discretion will be exercised in simply a disgrace.

While the policy is clear that those EU Citizens and family members granted EU Permanent Registration Certificates or EU Permanent Residence Cards (as the case may be) on the basis of five years’ residence will be considered lawfully present in that period, it has been Home Office policy to discourage such applications and focus attention on Settled Status applications. Moreover,  many potential beneficiaries will not have such documents and will solely have Settled Status.

The problem demonstrated

 They policy hurts EU Citizens in many situations. Two examples are given here. A French citizen marries a British citizen and they reside in the UK. She never applies for a Permanent Registration Certificate. She has never been economically active nor has she had CSI. She lived from her husband’s income but his subsequent unemployment saw him rely on Universal Credit. She secures Settled Status and wishes to apply for naturalisation as a British citizen. The Home Office has allowed her to build a life in the UK without the need for residence documentation or to possess CSI. Now she must risk her naturalisation application fee and guess whether discretion will be exercised in her favour.

An Italian self-employed journalist lives in the UK. In lean years she was not able to show genuine and effective work, such that she may be said to have been exercising an EU right to reside. As a result, she has been in and out of EU Self-employed status without retaining that status in the lean years. Nonetheless, she secures Settled Status and wishes to apply for naturalisation as a British citizen. The Home Office has allowed her to build a life in the UK without the need for residence documentation or to possess CSI. Now she too must risk her naturalisation application fee and guess whether discretion will be exercised in her favour.

Why would an EU Citizen bother to naturalise as a British Citizen?

It is not obvious why an EU Citizen (as opposed to a non-EU Citizen family member) needs to naturalise as a British Citizen? An EU Citizen with Settled Status has no restrictions on the time they can be in the UK and can be away for up to five years without losing that status. Furthermore, no restrictions as to access to social assistance (Universal Credit, homelessness assistance, etc.) are placed on those with Settled Status/indefinite leave. For an EU Citizen, who still has EU free movement rights within the EU, what is the practical gain in holding British Citizenship and a UK passport? The answer is that full enfranchisement as a British Citizen would allow them to vote in national General Elections and thus to be part of a consistency with democratic power. As subjects rather than objects of policy making, it will be less easy for the UK Government to treat them badly.

How to make the Home Office policy better

The naturalisation policy could have been different. Indeed, it may be changed at any time. In circumstances where it has been Home Office practice to allow economically inactive EU Citizens to be present in the UK on a self-sufficient basis without insisting on CSI, for them not to be required to obtain Registration Certificates but merely to be present, and for them have not been made subject to administrative removal from the UK, it would not be fettering discretion or acting inconsistently with legislative purpose to have a policy to exercise discretion to disregard such ‘breaches’ of UK immigration law by applicants for naturalisation as British Citizens who have lived in the UK on such a basis. In fact, it would be consistent with prior UK immigration practice towards such persons and consistent too with the UK policy to grant Settled Status without imposing a condition that an applicant has exercised an EU right of residence. It is time for the Secretary of State to change her policy; time for her to do the right thing.