As we head towards the end of the UK’s Brexit implementation period on 31 December 2020, the thoughts of many EU nationals (here I use the term to include EEA & Swiss citizens too) who have lived, studied and worked in this country, often for many years, are turning to becoming British.
As non-nationals in a non-EU country, this is a sensible approach. The UK is requiring all resident EU citizens to document themselves; something that has not been universally welcomed. While the system for applying under the EU Settled Status Scheme might be light-touch, it is a significant departure from the old system whereby such citizens were able to live in the UK – as in any other EU member state – largely without formality.
The need to document status does of course carry over into the naturalisation process, which requires a formal application, with supporting evidence, to the Home Office.
The path to naturalisation at discretion which leads to British citizenship for the vast majority of adult applicants is a well-trodden one, the law being set out in the British Nationality Act 1981, principally at Section 6 and Schedule 1. You may well be familiar with the 3 or 5-year residence requirement, rules on good character, and on the need to be free from immigration restrictions when applying. Lurking behind these rules is a further potential problem, the good character requirement common to most nationality applications, which permits the Home Office to review an individual’s compliance with immigration laws going back 10 years.
One aspect of these residence requirements is causing difficulty for EU citizens who spent time in the UK either as a full-time student, or on an economically self-sufficient basis, such as the partner of a British citizen. Since 20 June 2011, it has been necessary for these categories of EU citizen to have held Comprehensive Sickness Insurance while living in another member state.
Confusingly, under the UK’s EU Settled Status (or Pre-Settled Status) Scheme the government has taken the decision to disregard this requirement. The disregard does not carry forward to a citizenship application – we have seen applicants who lost their £1330 citizenship application fee (less an £80 citizenship ceremony refund) due to this error.
Comprehensive sickness insurance can be evidenced in three ways. Most straightforwardly, an individual or their family member may have held private health cover, which must cover most – not necessarily all – risks. You can find a full list of acceptable evidence in this document. Simple dental cost plans won’t work – but it’s not necessary to have bought cover for pre-existing conditions.
Second, there’s the EHIC – issued by your own government, not the UK – which broadly provides cover for short-term residence only.
Third, you may have cover under a reciprocal arrangement between your own government and the UK. The process of proving this can be tricky: this document published by the EU provides further details.
If you are considering naturalising as a British citizen, and your time in the UK has included self-sufficiency or full-time study, you must think very carefully about evidencing sickness insurance during relevant periods.
Whether you need to worry about this for the 3 or 5 years of your qualifying residence, or the 10 years referenced in good character guidance, is not entirely clear. In our view, the better approach is to disregard non-compliance for the 10 preceding years, and focus on the last 3 or 5, but there is no guarantee the Home Office’s caseworkers will do so.
However, there is some hope for individuals who didn’t have such insurance. Nationality guidance states:
You must consider why the applicant did not have comprehensive sickness insurance. Where someone has been granted ILR under the EUSS but has not been resident here in accordance with the EEA regulations (prior to grant of pre-settled status or settled status) due to a lack of comprehensive sickness insurance you should consider whether it is appropriate to exercise discretion in their favour.
The guidance doesn’t really elaborate further: it continues in a rather circular way to explain that Home Office caseworkers 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. It continues:
[Discretion might be exercised where] the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour
What amounts to sufficient evidence isn’t clear – maybe showing you’ve established a strong family life here, with a partner or children, puts you in a stronger position. So all pretty unsatisfactory, really: there’s an obvious lack of certainty for EU nationals facing this issue; clearer guidance from the Home Office would be welcomed; otherwise the Courts may express a view that isn’t what applicants want to hear.
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