Since the EU Settlement Scheme fully opened on 30 March 2019, there has been a great deal of uncertainty amongst EU citizens and their family members around the issue of whether their new immigration status, called ‘settled status’, could be enough to prove they have been lawful residents in the UK for the purposes of applying for British citizenship.

Under British nationality law, in order to naturalise as a British citizen it is necessary to meet certain residence requirements. This includes demonstrating that the application has been lawfully resident in the UK for the past 5 years prior to the date of application (or 3 years if married to a British citizen). The applicant must also be free from immigration time restrictions on their stay in the UK, which can be met by having settled status.

There was some confusion surrounding the EU Settlement Scheme (‘EUSS’) and what a grant of settled status meant in terms of applying for citizenship. This confusion stems from the fact that under the EUSS applicants are only required to show they have been resident in the UK for a period of 5 years, unlike permanent residence applications under the EEA Regulations 2016, which require applicants to show that they have been exercising EU treaty rights during the qualifying period i.e. as a job seeker, worker, self-employed, self-sufficient or student person. The question was therefore whether EU citizens and their family members would be treated as ‘lawfully’ resident in the UK prior to the grant of settled status without further evidence that they had been exercising their treaty rights in the UK during the qualifying 5 year period.

The Home Office has finally shed light on this issue by confirming that settled status is not proof of past lawful residence in the UK. The government’s updated guidance, which was released on 15 May 2020, states:

However, this grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they 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.

This policy update now makes clear that physical residence is not the same as living in accordance with the EEA Regulations 2016. By having settled status individuals may be able to show that they are free of immigration time restrictions but this will not be enough in terms of showing that their residence up to the point of getting settled status was in accordance with EU law.

In light of the above, many EU nationals and their family members may have to wait longer than expected to apply for citizenship, some may be asked to provide further evidence to prove their lawful residence in the years prior to their naturalisation application and some may simply fail to meet the residence requirements (i.e. students /self-sufficient persons without comprehensive sickness insurance or applicants who were economically inactive).

The Home Office acknowledges that problems may arise in some applications and that discretion may be exercised:

A person may also be in breach if they have not complied fully with all the requirements of the route they are on. Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA

regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assessment about whether discretion should be exercised in their favour.

Lastly, the guidance has also clarified the approach to be taken to those individuals who apply for citizenship having resided in the UK with a combination of residence rights under the EEA Regulations and with a grant of pre-settled status. Applicants will only need to demonstrate they were exercising treaty rights for their period of residence prior to the grant of pre-settled status and not for any time after the grant of pre-settled status, even if they had dual rights of residence under the EEA Regulations.

For expert advice in relation to an EU Settled Status or British citizenship application, please contact our immigration team.