Europeans’ ability to become British citizens has recently gotten more challenging.

The Home Office has decided to make it more difficult for European residents to become British citizens. EU citizens with settled status who apply for naturalisation now have to provide evidence that they have been living in the UK legally, according an update to government nationality policy released on 15 May 2020.

One of the requirements for naturalisation as a British citizen is to have lived in the UK for five years (or three years if married to a British national). Time living here in breach of UK immigration law does not count. The Home Office has long taken the view that EU citizens physically present in the UK but who do not have a right of residence under EU law are in breach of immigration laws. Unknowingly lacking a right to reside is surprisingly common — many people without comprehensive sickness insurance were caught out by this in the past.

Because of Brexit, European residents and their family members have been offered immigration status under UK law (instead of EU law). Getting the new “settled status” does not require proof of a previous right to reside — it is mostly based on simple presence in the UK.

But when people with settled status come to apply for citizenship, the Home Office is now saying that the right to reside issue must be dealt with in their application. Simply having settled status is not enough, in this context. Settled status will serve as proof of being free of immigration time restrictions (another of the naturalisation requirements) but will not do in terms of showing that the person’s period of residence in the UK was in accordance with immigration law.

On exercising discretion, the policy further suggests that being in breach of the EEA Regulations is not as bad as entering the UK illegally or overstaying on a visa. But Europeans — assuming they are aware of their precise legal status in the first place — will have to “provide sufficient evidence to justify discretion being exercised in their favour”. The effect will be to make it more difficult for EU citizens to become British than if settled status were simply accepted as evidence of lawful residence. 

By contrast, if the person has previously secured a permanent residence card, that will — unlike settled status — serve as proof of five years’ lawful residence.

The issue will also affect citizens of Norway, Iceland, Liechtenstein and Switzerland.

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