Under current UK nationality rules, EEA nationals who have been living lawfully in the UK for a period of five years are entitled to permanent residency automatically on their fifth year anniversary in the UK
If they also wish to also apply for British citizenship they will need to meet two criteria:
– be free from any immigration restrictions for a further period of twelve months, in other words remain in the UK with the permanent residence status for a further 12 months; and
– be in possession of a permanent residence card when submitting a naturalisation application to become a British citizen.
In an earlier blog “Brexit – impact on the rights of EU citizens in the UK” we discussed the relevant Treaty rights of EEA nationals as protected by EEA law and how non-EEA family members can apply for a family permit, residence card and permanent residence to join or remain with an EEA national who is exercising Treaty rights in the UK.
We address below the rights of EEA nationals who live in the UK and are married to a British citizen.
Nationality law is more lenient towards persons relying on their family ties to a British citizen when applying for naturalisation. The requirement to be free from any immigration restrictions for a further period of twelve months does not apply when such applications are made by a spouse or civil partner of a British citizen. While spouses and civil partners must still hold an unrestricted immigration status to make this application (ie hold permanent residence if they are EEA nationals or Indefinite Leave to Remain if they are non-EEA nationals), there is no requirement to hold this status for a further period of twelve months before making a naturalisation application.
Below we refer to some of the main requirements of a naturalisation application made on the basis of being the spouse or civil partner of a British citizen. An EEA national must:
1. Be aged 18 or over when applying
2. Be married to or in civil partnership with a British citizen on the date of application
3. Have sufficient knowledge of language and life in the UK
4. Be resident in the UK for a minimum of three years before applying and not have spent more than 90 days outside the UK in the year before making the application and 270 days in total in the three years before making the application.
Applications for naturalisation made by EEA nationals and non EEA nationals who are not spouses or civil partners of British citizens need to meet the longer residency requirement of five years instead of three.
However, as EEA nationals and most non-EEA nationals under various immigration categories become free from immigration restrictions after five years of lawful residence in the UK, realistically speaking they need to have been resident in the UK for five years. The main difference in naturalisation applications made by these persons when they are married to a British citizen is that they do not need to hold this status for twelve months before they apply and only their absences from the UK during the last three years preceding their application will be relevant.
As the above provisions derive from national law, they are likely to remain unaffected by Britain’s future position outside the EU. However, irrespective of individual circumstances, an EEA national must be free from any immigration restrictions at the time of applying for citizenship. This means that they need to rely on EEA law to acquire permanent residence after five years of lawful residence, whether they are married or not to a British citizen. As this is likely to change in the future, there is no guarantee that EEA nationals will be able to acquire this status once EU law is no longer enforceable and they may have to seek alternative routes to remain in the UK, possibly under UK national provisions on family migration. It is possible that when EEA law ceases to apply in the UK, EEA nationals who are married to a British citizen may benefit from a more solid legal protection as they may qualify for leave to remain under UK’s national immigration rules.
The result of the EU referendum and the current political uncertainty continue to leave businesses, families and individuals in a state of confusion, especially when it comes to issues of immigration. Even though no formal political statements have been made, we can expect that the current legal framework in immigration will remain unchanged for the foreseeable future.
EEA nationals who have acquired or are about to acquire permanent residence and who wish to apply for citizenship can contact us for further information.
Demetris Demetriou
