The recent case of Inga Lockton is the most high-profile recent example of growing problems that EU citizens and their families face with applying for British citizenship.

Ms Lockton lived in the UK for 39 years, was married to a British citizen and had British children. She was elected a borough councillor in 1999, a Suffolk county councillor in 2001 ad was mayor of Ipswich in 2007. She was granted indefinite leave to remain when she first arrived in Britain back in 1979. Nevertheless, when she applied for naturalisation and paid the fee of £1,282 to do so, she was refused on the basis that she did not meet the residence requirements for British citizenship.

The particular problem in this case is a new regulation quietly introduced in 2015. It requires most EU citizens wanting to naturalise to produce a permanent residence document in order to prove that they qualify. The new rule does not apply where the EU citizen already possesses indefinite leave to remain, but not all officials at the hard-pressed Home Office are aware of this.

“If someone who has been a councillor for 19 years can’t get the [citizenship] paperwork right, it suggests there is something wrong with the paperwork.” https://t.co/4VSqW44dx1

— Free Movement (@freemovementlaw) May 23, 2018

The Immigration Law Practitioners’ Association recently wrote to civil servants highlighting (ILPA members only) several recent cases where EU citizens have been asked for additional but legally unnecessary documents by Home Office decision-makers.

In this briefing we take a detailed look at the barriers faced by EU citizens who wish to apply for British citizenship.

Some of these barriers are unavoidable, such as dual citizenship rules in other countries. But most of the hurdles are matters of government policy, whether erected deliberately — such as the huge fees and the complex documentary requirements — or accidentally, as a side-effect of hostility to EU residence rights. These UK-made obstacles could and should be torn down so that those EU citizens who do want to naturalise are able easily to do so.

Executive summary

Barriers to EU citizens becoming British citizens should be removed as far as possible so that those who wish to become British are encouraged to do so. There are some residual obstacles to the acquisition of British citizenship by EU citizens that are not dealt with by the new settled status the UK is introducing after Brexit and which can and should be urgently addressed so that children born in the UK are enabled to become British as easily and cheaply as possible.

What the Home Office can do and why:

What are the benefits of citizenship?

Before we go further, it is useful to consider why an EU citizen might want to become a British citizen. For some, the benefits of British citizenship are self-evident: you get to be British. Why wouldn’t one want to be British, some might ask?

The withdrawal of the benefits of EU citizenship, a transnational status which for many obviated the need for local citizenship, has prompted profound philosophical questions of identity and belonging. It also raises other much more practical questions of how one will move between countries in which one works, lives and has friends and family, all of which might be different countries.

Prosaically, British citizenship is the only secure status currently available to EU citizens in the UK. EU citizens can apply for the EU law status of permanent residence but the British government has announced that this status will become invalid at the end of December 2020, when the transition period ends. If talks fail and the UK leaves under a “no deal” scenario, permanent residence will cease to have effect earlier than that, in March 2019.

The replacement status, referred to by the British government as “settled status”, is not expected to become available until towards the end of 2018.

Dual citizenship problems

British nationality law is not exclusive in nature and does not prevent a person holding another nationality or nationalities in addition to British citizenship. The nationality laws of some other countries are not as relaxed about dual citizenship.

Several EU countries prohibit or restrict dual citizenship, including Austria, Estonia, Lithuania, Netherlands, Norway and Slovakia.

Where an EU citizen is a national of a country restricting dual citizenship, he or she may face a difficult choice between retaining his or her current identity and citizenship or gaining a new one. Surrendering one’s citizenship of birth is a major step and has serious consequences not just for oneself — imagine having to obtain a visa to travel to your “home” country to visit friends or family — but also for one’s children.

British citizens living in the affected EU countries face a similar choice. If they wish to acquire the most permanent form of status and integration in their country of residence they will face having to obtain a visa or pass whatever post-Brexit immigration checks are imposed by the UK on EU citizens whenever traveling or visiting friends or family in the UK. Any future children would lose the right they would otherwise have had to British citizenship by descent.

Proving five years’ lawful residence

Four of the residence requirements for British citizenship are potentially problematic for significant groups of EU citizens who might want to seek naturalisation as British citizens:

• Firstly, the applicant must be settled in a legal sense at the date of application
• Secondly, the applicant must have built up either three or five years continuous lawful residence at the date of application depending on whether they are married to a British citizen or not
• Thirdly, the applicant must be able to prove three or five years of lawful residence
• Fourthly, the applicant must be have not been absent from the UK for broadly more than 90 days per year.

Almost all EU citizens currently living in the UK will be eligible for settled status when it becomes available. Some barriers to naturalisation will persist beyond this. This briefing sets out how the legacy of the historically hostile approach of the Home Office to EU residence rights will continue to have ramifications far into the future unless we see a change of policy now.

1. Being settled

The requirement to be settled in order to naturalise as a British citizen is actually that the applicant must prove he or she is not “subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom” (paragraph 1(2)(c) or 3(c) of Schedule 1 of the British Nationality Act 1981). In the case of those relying on EU law to live in the UK, the Home Office interprets this requirement as requiring possession of permanent residence.

It takes five years of residence in accordance with EU law to acquire permanent residence. Acquisition of permanent residence is automatic: it does not require an application or the possession of a particular piece of paper.

Because of some inherent problems with EU law and, more significantly, the UK’s position that access to the NHS does not qualify as Comprehensive Sickness Insurance, this requirement of five years of EU law residence represents a barrier for significant groups of EU citizens.

We have previously looked at this issue in depth. Essentially, those affected are EU citizens who are self sufficient but do not possess explicit health insurance or who are low earning or have interrupted employment record. The key at-risk groups have already been identified by Charlotte O’Brien and the Migration Observatory. Those most likely not to be eligible for British citizenship include:

• Stay-at-home parents
• Stay-at-home carers
• Low-paid or part-time workers
• Self-employed workers
• Exploited or abused workers or individuals
• Children

To be clear, these groups will qualify for settled status when it becomes available because the UK government has stated that it will not apply these problematic aspects of EU law. That does not help EU citizens now. Even after settled status does become available there may still be problems: as discussed below, some EU citizens may find themselves barred from applying for naturalisation by other residence issues.

Some EU citizens who have been living in the UK for a long time may have been granted indefinite leave to remain (ILR). This is an immigration status under UK law rather than EU law. Where an EU citizen (or family member who could rely on EU rights of residence) has been granted and has retained ILR, he or she does not also need to show possession of permanent residence. ILR meets the requirement, as the Home Office formally recognises. The case of Inga Lockton illustrates the problem of Home Office officials not always knowing or understanding Home Office rules, though.

2. Prior lawful residence

As well as being settled at the date of application, an applicant for naturalisation must show a period of prior lawful residence counting back from the date of application:

• Three years if married to a British citizen
• Five years if not married to a British citizen

The problem is that to be eligible for naturalisation the past residence has to be lawful and therefore in accordance with EU law as the UK government has previously applied and interpreted it. As discussed above, this could be problematic for significant numbers of EU citizens, particularly stay at home parents or carers, the low paid or those with gaps in their employment record.

It is also very hard to suggest to one of these affected groups that they “take a punt” on applying for British citizenship to see if they do qualify when the non-refundable cost of a failed application is £1,330.

If those affected apply for and are granted settled status once it is available, they will become eligible for naturalisation as a British citizen after three or five years from the grant of settled status, depending on whether they are married to a British citizen or not. This delay is an unnecessary one, however, and it assumes that they do acquire settled status. There are concerns that some of these vulnerable groups will not acquire settled status either, even though they should be eligible for it.

3. Proof of qualifying residence

Even where an EU citizen has been working or self-employed for the required three or five year period to qualify for naturalisation, it is not always easy to prove it. 

Many workers, particularly in certain sectors of the economy such as the building trade, are paid cash in hand. Some will not have bank accounts or they will not pay wages into a bank account. Others are self employed and may not have formal accounts or the other documents required by the Home Office, which go considerably beyond tax returns.

We have previously described the evidence the Home Office demands for self employed people as “preposterously complex”. The list of documents fills an entire annex to the Home Office guidance.

The evidential requirements imposed by the Home Office go above and beyond EU law by requiring strict proof of earnings in formal documentation. The reason is that the Home Office assumes that some people will fraudulently claim a right of residence, thus entitling them to benefits and other rights.

This concern is now irrelevant given that the Home Office had decided to waive all the work requirements for settled status in future anyway. But there is no sign this approach will be applied retrospectively, meaning that affected EU citizens will have to wait an unnecessary additional three or five years after gaining the new settled status before being eligible for naturalisation.

4. Absences from the UK

Normally, a spouse of a British citizen needs to show he or she has lived mainly in the UK during the qualifying period. The basic rule, set out in Schedule 1 of the British Nationality Act 1981, is that the applicant must not have been outside the UK for more than a total of 270 days in total over the three-year period for spouses or 450 days over the five-year period for non spouses, including no more than 90 days in the final year in both cases.

This could be a problem for some EU citizens. Those who have to leave the UK to care for a relative, who give birth abroad and remain there with family for a time or otherwise who travel a lot may find that they are caught out by these rules on absences.

The Home Office’s strict approach to proof for the purposes of absences creates a particular problem for EU citizens, whose passports do not show exit and entry stamps for travel within the EU or return journeys from anywhere into the UK. It is very hard for EU citizens to prove that they were physically inside the UK on any particular date.

It seems to be for this reason that officials have been writing to some EU citizens applying for naturalisation to ask for further evidence of residence in the UK. Such letters given the recipient a limited time frame in which to respond, failing which the application will be refused and the application fee of £1,330 forfeited.

The British Nationality Act authorises officials to exercise discretion to waive excess absences. For any exercise of discretion where the absences exceed 300 days in total, Home Office policy states that the applicant must show they have “established their home, employment, family and finances in the UK”. A set of criteria for different levels of absence is also set out, suggesting officials consider factors such as long previous residence, nature of the applicant’s career and “exceptionally compelling reasons of an occupational or compassionate nature.”

See our blog post on the case of Ms Markle for more information on exercise of discretion.

Getting a permanent residence document

From 12 November 2015, an EU citizen (or family member of an EU citizen) with permanent residence wishing to apply for British citizenship first has to apply for a permanent residence certificate or card. This change was introduced by the British Nationality (General) (Amendment No. 3) Regulations 2015 (SI 2015/1806). 

Where an application for naturalisation is made without a permanent residence document where one is required, such applications are now being refused. This means that the fee is lost, not refunded. For some time after the change applications were being returned by the Home Office without being refused but that practice ended on 1 August 2016.

This change was introduced just months before the Brexit referendum was announced. It made it noticeably harder for EU citizens to apply for naturalisation as British citizens because:

1. They had to navigate the 85-page form or, more recently, use the online application process
2. They had to pay an additional fee for a permanent residence document they did not need or want
3. They have to wait up to six months for a decision on their permanent residence document application before they can made a separate naturalisation application

The introduction of this change in process caused the number of applications for citizenship by EU nationals to halve almost overnight, before climbing steeply again after the referendum.

Meeting the good character requirement

One of the statutory requirements for naturalisation as a British citizen is that the applicant is a person of “good character”. We have discussed the good character requirements in detail elsewhere.

The good character requirement cannot be waived entirely and no-one would suggest permitting the naturalisation of EU citizens of serious criminals. Just the same, the good character requirement is applied more and more strictly and there is a real lack of clarity about how it is applied to some EU citizens.

In December 2014 the Home Office introduced new guidance on good character and started to refuse naturalisation applications on the basis of poor previous immigration behaviour. It is unclear to what extent this might apply to EU citizens the Home Office think have not been lawfully resident in accordance with EU law, such as self-sufficient people who do not have Comprehensive Sickness Insurance.

There is also a question mark over those EU citizens who were supposed to comply with the Workers Registration Scheme (WRS) but did not. The WRS applied to citizens of countries which joined the EU in 2004, enabling to work freely in the UK but they were requiring them to register so that the government could keep count.

There is no mention of WRS compliance at all in the guidance, risking inconsistent decision-making by officials. Some applications have been successful despite non-compliance but there have also been rumours of refusal on this basis. I am yet to see confirmation of a refusal in writing but clarity from the Home Office would be very welcome.

The problem is that the normal rule since 2014 has been that a breach of immigration laws leads to a 10-year ban from naturalising on good character grounds and the application fee of £1,330 makes a speculative application very unattractive.

Cost

We have already mentioned the cost of naturalisation applications in this briefing. The cost for applying for naturalisation is currently £1,330 (April 2018 figure). The fee is non-refundable and it is forfeited if the application is refused.

This naturalisation fee is a huge barrier to citizenship, particularly for low-paid workers, stay-at-home carers and the elderly, amongst others. It imposes double discrimination because certain groups are likely to be low paid in the first place — such as ethnic minorities, women, those outside London and the young — and the high fee means that these groups are even less able to integrate as citizens.

Even worse than the high fee for naturalisation, which applies to adults, is the fee for registration for children. Some children are born British, but may struggle to prove it if born to EU parents as discussed below. Some other children are entitled to register as British citizens, for example if born in the UK and one or both parents acquire settled status, but must first make an application and pay a fee.

The fee for a child to claim his or her entitlement to British citizenship through registration is currently £1,012. If the application is not made and the fee not paid, the child will often lose his or her entitlement on turning 18. 

Many parents cannot or just will not pay this fee. As a result, the child permanently loses out on entitlement to British citizenship. This was bad enough before Brexit, but at least EU citizen children would still have free movement rights and be able freely to come and go from the UK. After Brexit, that will no longer be the case. A substantial number of children will grow up without immigration or citizenship status and their problems are only likely to emerge years later. There are clear parallels with the Windrush scandal: the children came to the UK lawfully, they remained lawfully, they were entitled to status.

Most of this fee is profit for the Home Office: the actual cost of processing an application is only £372.

We cover this scandal here: Guest post: the fee for children to register as British is the next Windrush scandal.

Children: proving status of parents at date of birth

Any child born in the United Kingdom is automatically born British where one or both of the child’s parents is settled in the United Kingdom at the date of birth. See British Nationality Act 1981, section 1(1) and for the definition of “settled” see section 50(2).

If one of a child’s parents is British or is an EU citizen in possession of an optional permanent residence document, the child will later have little difficulty proving that one of his or her parents was settled and therefore that the child is a British citizen and always has been.

But what about where both the parents are EU citizens who did not have permanent residence documents at the time of birth or where one is an EU citizen and the other from outside the EU entirely and neither have a settled status document? In these cases, the child may be British if the EU citizen had automatically acquired permanent residence, but proving that may prove to be hard or even impossible.

Would you be able to produce five continuous years of your parent’s payslips or P60s immediately prior to your birth? Probably not. And what if your parent worked cash in hand?

There is a related problem. The Home Office’s restrictive interpretation of EU law already discussed — denying residence rights to stay at home carers, the low paid, women who took maternity leave and so on — affects the children of those affected. If the Home Office denies that such a person had acquired permanent residence, this will also mean that their children born in the UK may not be treated as British citizens from birth and the full registration fee of £1,012 will need to be paid once settled status is later acquired.