It just got even more difficult for EU nationals to get British citizenship

On 30 September 2020 the Home Office updated its good character policy for naturalisation to make it even harder for EU nationals to become British citizens. 

The new policy doubles the period of time, from five years to ten years, during which certain EU citizens in the UK must have held comprehensive sickness insurance (CSI) or a European health insurance card (EHIC) issued by an EU country, in order to qualify for citizenship.

Before we discuss the latest policy update in detail, some important points:

• This only affects applicants for British citizenship. 
• This generally only affects EEA and Swiss citizens (and dependants) who have been students or self-sufficient in the UK in the ten years preceding their application for British citizenship.
• Employed and self-employed workers were not required to hold CSI or an EHIC and are not required to under this policy either.
• Family members (within the meaning of the EEA Regulations) of workers were not required to hold CSI or an EHIC either.
• The good character assessment does not introduce a ten-year residence requirement. If a person moved to the UK less than ten years ago that’s fine; the caseworker will just examine UK residence back to the date they first arrived. 
• The new guidance does not say that everyone without CSI will be refused citizenship. The problem is it doesn’t say they will be granted either. 
• If a person is affected by this issue, there is nothing stopping them from applying and asking for discretion, which a caseworker can consider applying. If the application is refused, though, the applicant stands to lose their application fee of £1,349.20 (of which only the £80 citizenship ceremony element will be refunded). Refusal is costly but doesn’t prohibit future applications.

What has changed?

The updated good character policy says:

In assessing whether a person has complied with immigration requirements over the previous 10 years, you must take into account whether they were subject to the EEA Regulations 2016 or the Immigration Act 1971 and whether they complied with the relevant requirements.

Decision-makers must examine a European applicant’s status over the decade leading up to their citizenship application to ensure that they were lawfully resident during that entire time. A person applying on 1 November 2020, for example, will have their residence scrutinised all the way back to 1 November 2010, or the date of their first arrival in the UK, whichever is most recent. 

Crucially, a grant of settled status under the EU Settlement Scheme does not absolve you of previous sins:

To qualify for indefinite leave to remain [aka settled status] under the EUSS, an EEA national or their family member must have been resident in the UK for a continuous period of 5 years. However, a grant of ILR under the EUSS does not confirm that the person has complied with immigration requirements during that time, as this is not a requirement of the EUSS.

And specifically on CSI:

Comprehensive Sickness Insurance (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. If a person did not have CSI, you must consider why they did not have it. Where a person has been granted ILR under the EUSS but has been in breach of the EEA Regulations 2016 due to a lack of CSI you must consider whether it is appropriate to exercise discretion in their favour. Some applicants will have previously been refused permanent residence on the basis of not having CSI. When considering whether it is appropriate to exercise discretion, you must assess the reasons given for this, and why they did not then obtain CSI.

The previous version of the guidance had no mention of CSI.

What does this mean in practice?

EU nationals applying for British citizenship will be specifically asked about their residence in the UK in the ten years prior to their application. They will be required to provide information and evidence about this in their application form.

Caseworkers must then ascertain if the applicant ought to have held CSI or an EHIC, and if so, whether they did. If they did not, the caseworker must consider if it is nevertheless appropriate to use their discretion to grant the application anyway. 

EU nationals to whom this is relevant must now be very cautious when applying for British citizenship. If in the past ten years they have been students or self-sufficient in the UK without CSI or an EHIC, they could see their naturalisation application refused.

To apply or not to apply?

Until the policy is clarified to spell out exactly when a caseworker will or will not exercise discretion to overlook periods of residence without CSI, we think it is risky for EU nationals affected to apply for naturalisation. As we said at the start, the main risk really is simply losing the application fee, but until we start building up a body of statistics on grants and refusals arising from this policy, it is hard to say with any certainty what the outcome of an application will be. Anyone with a specific or urgent need for citizenship is within their rights to present a case for it, but only time will tell how such requests will be decided.