On 30 September 2020 the Home Office updated its Good Character nationality policy guidance. The changes made could make it more difficult for EU citizens to obtain British citizenship.
We previously discussed changes that were made to the ‘Naturalisation as a British citizen by discretion’ policy guidance in May 2020. These changes introduced a specific requirement for EEA/EU citizens to have Comprehensive Sickness Insurance (CSI) during the relevant five-year period. The Home Office have now made this requirement significantly more difficult.
Good Character requirement
A mandatory requirement of the British Nationality Act 1981 is that anyone over the age of 10 applying for naturalisation as a British citizen needs to be of “good character”. If the Home Office deem that an applicant is not of good character, then their application will be refused.
One of the factors assessed against the good character requirement is whether an applicant has been lawfully resident in the UK and has complied with UK immigration laws. This includes, where applicable, an applicant having held CSI under the EEA Regulations for the relevant period when required to do so in order to be considered a ‘Qualified Person’.
Good Character policy guidance update
The policy update applies to EEA nationals and their family members and states:
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.- Guidance 2.0
EEA citizens will now have their immigration history and compliance scrutinised for a period of 10 years (or from the date they entered the UK, if later) up to the date of application rather than just the relevant five-year period, as was expected prior to the guidance being updated.
The guidance specifically goes on to say about 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.
This section on CSI was not previously found in the guidance. It effectively means that a decision maker will be required to assess whether an applicant complied with the requirements for CSI from the date of application going back 10 years, or the date they first arrived in the UK, whichever came first. Where an applicant did not have CSI for all or part of their time in the UK then an application could be refused unless the Home Office decision maker chooses to exercise discretion in the applicants’ favour.
Who is affected?
It is important to note that once an EEA/EU citizen holds settled/pre-settled status, it is not a requirement of their leave to hold CSI.
The enhanced CSI requirement will most likely affect those EEA and Swiss citizens who have been students or self-sufficient in the UK in the 10 years preceding their application. Applicants who were employed or self-employed during the past 10 years would not have been required to have CSI and do not need to satisfy the decision maker in this regard.
Unlike with an application made under the EEA Regulations, it is not necessary to demonstrate that an individual held CSI whilst a student or self-sufficient in order to obtain settled status under the EU Settlement Scheme (EUSS). There are therefore a number of individuals who now hold Indefinite Leave to Remain (ILR) but could potentially fall short of the requirements for naturalisation if they previously held leave under the EEA Regulations as students or self–sufficient persons.
Exercise of Discretion
The guidance allows Home Office decision makers to exercise discretion in an applicant’s favour but it will be up to the applicant to request this and to provide an explanation as to why he or she did not have CSI for anytime during the 10 years prior to the date of application.
Unfortunately, the guidance does not clarify any further the circumstances in which the Home Office will exercise discretion and grant an application for naturalisation even though an applicant did not have CSI for the whole or part of their leave under the EEA Regulations. It remains to be seen how such applications will be handled by the Home Office and if any further guidance is issued in due course.
In the meantime, an applicant who has been self-sufficient or a student in the 10 years preceding the date of their application should carefully consider whether a naturalisation application should be made at the present time, given that a refusal decision is possible and would result in the loss of application fees which are currently £1330.
How our immigration solicitors can help
Our immigration experts are able to provide advice and guidance in relation to naturalisation and registration applications. If you are interested in making an application, and are concerned about your immigration history, conduct or any other matter, our team would be delighted to assist and can be contacted here. Alternatively, please complete our enquiry form below.