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Settled status holders still need to show “exercise of Treaty rights” for British citizenship

18 May 2020 John Vassiliou Blog

On Friday 15 May 2020 it became significantly harder for EU settled status holders to naturalise as British citizens.

The Home Office subtly updated its policy guidance for applications for naturalisation (British citizenship applications) to now require evidence of “exercising Treaty rights” from holders of settled status, up to the date they were granted their settled or pre-settled status. This change will affect all pending and future naturalisation applications.

Any applicant for naturalisation must satisfy the Home Office that they have not been in breach of the immigration laws in the 5 years prior to their date of application (or just 3 years for those married to a British citizen). The Home Office position is that the grant of EU settled status does not mean that the European person was in the UK lawfully prior to that grant. The person will now need to prove that they resided lawfully in the UK in accordance with the EEA Regulations in the lead-up to their grant of settled (or pre-settled) status.

This isn’t a new change in the law, but until Friday, the Home Office was silent on its policy position in relation to this issue. The updated policy document says:

“… this grant of settled status (also know as indefinite leave to enter or remain) will not confirm that [the EU settled status holders] were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this.”

“To assess whether the person was here lawfully in accordance with the EEA Regulations (if required) prior to their grant of pre-settled or settled status you must look at the guidance on EEA/Swiss nationals and their family members. This includes the type of evidence you can take into account. You must assess whether the applicant was lawfully resident under the EEA Regulations in accordance with that guidance and therefore lawfully in the UK for any residence prior to the grant of pre-settled status, or settled status. If the information is not provided with the application form, you must request it. You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:

  • as a qualified person (such as a worker, student, self-employed, self sufficient, retired or incapacitated person)
  • as the family member of such a person. Evidence of this can include API data or documents previously submitted to satisfy their lawful residence.

Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI).

Applicants who have been studying or self-sufficient and have comprehensive sickness insurance (CSI)

For those EEA and Swiss applicants who have been studying in the UK, or here as a self-sufficient person, you must check the EEA caseworker guidance to see what evidence is required to demonstrate that they were here lawfully. The applicant must provide a copy of their comprehensive sickness insurance policy, for the duration of their stay in the UK under the EEA Regulations. CSI is a legal requirement for EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them. You can request this document, if the applicant has indicated on the form that they had CSI. For those who did not have comprehensive sickness insurance, please see below. A full list of accepted CSI documents can be found in the EEA guidance in the ‘Comprehensive sickness insurance: documents required’ section.

Applicants who have been studying or self-sufficient and did not have comprehensive sickness insurance (CSI)

CSI is a legal requirement for EU, EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them. The form asks the applicant if they had comprehensive sickness insurance during their time spent in the UK. Those who answer no should have provided an explanation in the box provided. This will include people who previously applied for permanent residence and were refused on the basis of not having CSI. 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 may all sound painfully familiar to anyone who recalls the predecessor to the EU Settlement Scheme. Many had hoped that when the EU Settlement Scheme generously extended the offer of settlement to all EEA nationals resident in the UK for five years without further qualification, that would be the last we heard of comprehensive sickness insurance and European Health Insurance Cards (EHIC). Sadly this looks like it will all resurface again.

The most concerning thing about all of this is that the new policy will be applied to all currently outstanding applications. Some people may not have submitted and paid for their £1349.20 applications had they known about this requirement. If their applications are refused they will likely lose their application fee if they cannot satisfy the Home Office that they were exercising Treaty rights in the lead-up to their grant of settled status.

If you believe these issues affect your application and you would like advice, you can get in touch with us for a consultation by voice or video call.


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