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Preparing for Brexit – how EU nationals can become British citizens

02 April 2019 Brexit & EU Migration Iain Halliday

As the UK’s departure from the EU approaches many European citizens in the UK are turning their attention to applications for British citizenship. Becoming a citizen is not necessary in order to secure your status in the UK – obtaining settled status is enough. However many decide that they would like to take the extra step of becoming a British citizen.

One of the requirements is to be “free from immigration restrictions”. This post looks at the ways that EU nationals can meet this requirement. For a more detailed look at the residence requirements for British citizenship see my recent free movement article here.

For EU nationals there are two ways to demonstrate that you are free from immigration restrictions:

  • obtaining a document certifying permanent residence under current EU free movement law; or
  • obtaining settled status under the UK Government’s new scheme for EU nationals after Brexit.

The two schemes are currently running simultaneously meaning that people can choose what type of application they would like to make.

The requirements for permanent residence are more stringent than for settled status. You must have been working for a 5 year period, which must have ended at least 1 year ago (this is to ensure the status can be backdated to at least 1 year ago, allowing you to apply for citizenship immediately). If you have not been working you would need to show that you have held comprehensive health insurance, a requirement many have had difficulty meeting.

Not only is the permanent residence scheme more cumbersome than the settled status scheme, it will also soon become obsolete as it will come to an end with Brexit.

As such generally it will be cheaper, easier, and quicker to make an application for settled status. However some people may still wish to make an application for a permanent residence document whilst it is still possible.

I have created a flow chart to help decide which option to pursue. It will hopefully be of use to people trying to decide if and when to apply, however it should not be used as a substitute for tailored immigration advice addressing your specific case. It starts in the top right hand corner:

 

flow chart 800x600

 

The flow chart caters for 5 broad categories of people:

1. Those married to British citizens who have lived in the UK for 5 years – these people should apply for settled status. This is because, if you are married to a British citizen, you only need to show that you are free from immigration restrictions at the date of your citizenship application. The advantage of applying for a permanent residence document, which allows you to backdate your status to a date one year in the past, is therefore unnecessary.

2. Those who are not married to British citizens, have lived in the UK for 6 years, and are able to show that they have acquired permanent residence – these people can choose between applying for permanent residence and then citizenship immediately or applying for settled status and waiting 1 year before applying for citizenship.

Anyone who is not married to a British citizen need to show that they have been free from immigration restrictions for at least 1 year before applying for citizenship. Relying on current the permanent residence scheme in order to backdate status and apply for citizenship immediately can therefore be useful. Where the requirements have been met, permanent residence is acquired automatically. A permanent residence document does not grant the status, it recognises a status which was automatically acquired at some point in the past. By contrast, settled status is effective from the day it is granted. So by applying for a permanent residence document a person can avoid the need to wait 1 year before applying for citizenship.

In many cases, even where a person is eligible for a permanent residence document, it will be simpler to apply for settled status and wait 1 year before applying for citizenship. This delay is unlikely to cause a problem for most. However, if the delay is likely to cause difficulty, it is still possible to make a permanent residence application instead. This work around will only be possible if the Withdrawal Agreement is concluded and we avoid a “no deal Brexit”. Even then, it will only be possible until 31 December 2020.

3. Those who are not married to British citizens, have been in the UK for less than 6 years, but will be able to meet the permanent residence criteria by June 2020 - If the Withdrawal Agreement is concluded then, during the transition period, people will continue to be able to make an application for a permanent residence document and use this to apply for citizenship. The date of June 2020 has been selected to ensure there is sufficient time for a permanent residence document to be issued and a citizenship application submitted before the end of the transition period on 31 December 2020, as on this date EU free movement law will end.

4. Those who are not married to British citizens, have lived in the UK for 5 years, and are unable to show that they have acquired permanent residence - these people should apply for settled status, wait one year, and then apply for citizenship. The work around above is only available to those who can meet the more stringent requirements of the permanent residence scheme. If you cannot meet the requirements for a permanent residence document but have lived in the UK for 5 years, or if there is no Withdrawal Agreement, then you would need to apply for settled status, wait 1 year, and then apply for citizenship.

5. Others who have been in the UK for less than 5 years - if you will reach 5 years’ residence before the end of the transitional period on 31 December 2020 then you can apply for settled status once you have reached the 5 year threshold. You may wish to make an application for pre-settled status in the meantime if you are extra cautious as the Government are yet to adopt legal provisions ensuring protection in the event of a no deal Brexit.

If you will not reach 5 years residence until after 31 December 2020 you must apply for pre-settled status. Once 5 years has been reached you can then apply for settled status and then citizenship (immediately if you are married to a British citizenship or after 1 year if you are not).

If you did not begin your residence in the UK before Brexit day (currently 12 April 2019) then you will only be able to apply for pre-settled status (followed, in due course, by settled status and citizenship) if the Withdrawal Agreement is concluded. In the event of a no-deal Brexit you would need to apply for Europe Temporary Leave to Remain and would have no fixed route to settlement and citizenship. After 3 years you would need to apply for a visa under the UK’s new post-Brexit immigration system.

All of the above simply determines if/when you should apply and what you should apply for. None of this is automatic. A permanent residence document, settled status, and citizenship must all be applied for and there are separate requirements for each.

 

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