In a determination published earlier this week, the President of the Upper Tribunal (Immigration & Asylum Chamber) has cast doubt upon the ability of EEA nationals to apply for naturalisation as British citizens. The case is Capparrelli (EEA Nationals - British Nationality)  UKUT 162 (IAC).
At paragraph 19, the Tribunal states that:
“I consider that the FtT fell into error in its consideration and application of the definition of "settled" in section 50(2) of the 1981 Act. This error arose from its concentration on the phrase "ordinarily resident" only, at the expense of and neglecting the second part of the definition namely " without being subject under the immigration laws to any restriction on the period for which he may remain"... The IAT should have held that this second part of the definition of "settled" cannot sensibly be applied to a EU citizen exercising Treaty rights since the "immigration laws", correctly defined and understood, do not apply to such persons. In other words, in the case of EU citizens, no question of a time restriction under the immigration laws can arise. It follows that EU citizens can never satisfy the second part of the definition.”
This is a staggering conclusion! The same phrase is used in paragraph 1(2)(c) of the British Nationally Act 1981 which outlines the requirements for naturalisation as a British citizen. If the requirement for an applicant not to be “subject under the immigration laws to any restriction on the period for which he might remain” does not include an EEA national who has acquired permanent residence – as the Home Office, the British Nationality (General) Regulations 2003 (specifically paragraph 13(1A) of Schedule 2), immigration practitioners, and EEA nationals themselves had hitherto presumed – then it is impossible for any EEA national to naturalise as a British citizen and all EEA nationals who have already become British citizens are not, in law, actually British citizens anymore as the decisions granting their applications were all ultra vires.
This cannot possibly be correct and it is only a matter of time before this determination is overruled by a higher court. It is unclear whether the Home Office will change anything in response to this judgement. Given the pressure on the Government to provide assurances to EEA nationals in the UK following the Brexit vote it would be incredibly unwise to begin refusing naturalisation applications, creating further hurdles for anxious EEA nationals seeking to protect their status before the UK leaves the EU.
For further information about the judgement, see Colin Yeo’s post on the Free Movement blog.