EEA Nationals and Family Members Post-Brexit – Becoming a British National

Brexit and transition Period

So, on the 31st of January 2020, Britain formally left the European Union, but no real changes have yet occurred, as the withdrawal agreement guarantees EU (and British citizens who are lawfully resident in other EU member states) broadly the same rights as they had before Brexit Day.

Thanks to the agreed implementation period, EU nationals’ right to continue to live, work and travel in the UK continues, in a reciprocal arrangement where the same would apply to British citizens moving to the EU during the transition period, which is expected to end on the 31st of December 2020, but it could be extended up to December 2022.

It is notable that, while the UK currently remains in both the EU customs union and the single market with right to free movement remaining the same, the UK automatically lost its membership of the EU’s political institutions, including the European Parliament and the European Commission. This means that we have to follow EU rules, with the European Court of Justice continuing to have the final say over any legal disputes, but will have no say in the making of the rules since we now have no voting rights. And to add salt to the injury, the UK will continue to contribute to the EU’s budget. Looking at the UK’s position, one can see why the government would not be keen to extend this transition period.

Why Apply?

Moving on from the Politics, this article is intended to provide a brief guide on British nationality for EU nationals, and the first thing to be addressed is “Why you should apply for it?”.

Being a British citizen has many advantages, dependent on your circumstances, but the main advantage is that it is permanent, meaning that you cannot be deported or removed from the UK (unless in the very unlikely event that you are stripped of your nationality because of a serious terrorist offence – which is extremely rare). It also means you are able to travel and live abroad for as long as you wish, without risking your right to come back and live in the UK.

It is also extremely important for future generations, i.e. children, especially those born abroad who would automatically become British Nationals by descent if one of their parents is a British national by naturalisation or registration.

Being a British Citizen also allows you to be able to apply for all jobs, including those with the government such as diplomatic service or intelligence, which may be reserved for British nationals. It also cushions you against any law changes that may affect you or your children in future; as a case in point the Windrush generation, who had ILR but with no paper record, and were later affected when the government effectively erased all the records at the Home Office, leaving them with no proof of ILR and therefore unable to work, travel or live lawfully, and dependent on the government to come to their assistance.

Who can apply

An application for an adult to become British, a process called Britsh Naturalisation is governed by s 6 of the British Nationality Act 1981, which gives the Secretary of State, under the authority of the Queen, the power to grant British citizenship, with five main requirements under SCHEDULE 1 of British Nationality Act:

  • Must be Permanently free of Immigration Control; and

This means that, as an EU citizen, you must either have a Permanent Residence Card under EU law, or the new Indefinite Leave to Remain (ILR) under Settled Status in theEU Settlement Scheme. There is also a requirement to have held this for at least one year, with an exception for those who are married to British nationals, as they can apply immediately upon being granted Settled Status/ILR.

  • Must have good character; and

From my experience as a UK Immigration lawyer, I can confirm that this is a minefield and the number one reason that applications are refused. This clause allows the Home Office to review a person’s character and history as far back as 10 years, with strict requirements that bar a person with any criminal record from applying for British nationality for a given period of time e.g. if you have been given a speeding ticket, you would be barred for three years, while more serious offences, for example, a custodial sentence of at least 12 months but less than 4 years, will see you barred for a period of 15 years since the end of the sentence.

The good character requirement encompasses even non-criminal matters, including any immigration breaches, such as previously having overstayed, working illegally or use of deceptions, which will all net you a 10-year ban. It also includes civil penalties and bankruptcy. It is therefore of paramount importance to consult your UK immigration solicitor before you submit the application, to ensure that you don’t fall foul of this rule, as it can sometimes have unforeseen consequences if you do.

Example case: James, an Italian national with ILR, applies for British nationality; he declares his Drink Driving offence that took place 4 years ago (he was banned from driving and fined for this offence) but fails to declare a speeding offence which took place a few months ago, thinking that this would not count as an offence since he didn’t lose any points on his licence and was only required to do a speed awareness course for driving at 35MPH in a 30MPH zone. James’s application stands to be refused for his non-custodial sentence within the last 3 years, but worse he could be accused of deception for failing to declare this, which would mean he would then face a 10-year ban under the good character requirement.

Top tip: Err on the side of caution and declare all you can; if you are not sure to consult your solicitor and include an explanation in the cover letter from your Immigration Lawyer.
  • Must have knowledge of the English, Welsh or Scottish Gaelic language; and sufficient knowledge about life in the United Kingdom; and]

This normally means you have to sit and pass the life in the UK test, and also have either an English Taught Degree from the UK (or from another country with a certificate to prove that it is equivalent), or have sat the English test and passed at least Level B1. Please note that the government have in recent years changed the rules to restrict the places from which you can get your English certificate, as well as the duration of validity, with English certificates expiring in two years.

Top tip:  check that your English certificate is still valid and acceptable under the current rules before you apply – check with your UK Immigration solicitor – and also check if you could fall under an exemption e.g. due to age, health or nationality.

  • Must intend your principal home will be in the United Kingdom;

This is normally quite self-evident from your residence in the UK and declaration when completing the form. Please note that this requirement does not mean that you cannot leave the UK in future, it just means you intend the UK to be your main home for the foreseeable future.

  • Must meet the residency requirement;

This normally looks at your residence in the UK over the last 5 years (or 3 years if you are married to a British Citizen), with a maximum requirement for the number of days you are allowed to be abroad. Eg. not more than 450 in the last five years and not more than 90 days in the last 12 months. This rule, of course, has some exemptions and calculations of the relevant dates ought to be carefully done, to avoid falling foul of the rules. 

Registering a child under 18 as a British citizen

It should be noted that the naturalisation process referred to in this article applies to adults, and is different from the registration of a child under 18, which has a different application form and fee (currently £1,012) with no requirement for an English test or Life in the UK. You should speak to your UK Immigration solicitor with regard to your children’s applications, which can also be attached to an application for adult naturalisation.

Who should not apply

Before you apply, you should consult your solicitor on whether and/or when to apply in your individual circumstances, as you may otherwise waste a lot of money on an application which currently costs £1,330 for each adult.

The first set of people who should not apply are British Citizens, this sounds silly but someone may be British automatically and not be aware of it eg. if you are an EU national and have a child who was born in the UK after you have been here for at least 5 years, your child may well be British (this is even if you have no Permanent Residence Card or Settled Status confirmation), as under EU law you would have acquired Permeant Residence automatically, with any child born after that being British by birth. In such a scenario it would be cheaper to apply for a British passport for your child with all the required evidence (a British passport is only £49 and does not have numerous requirements like British Registration).

The second set of people who ought to think carefully about applying are EU nationals who cannot be dual nationals, as you are not always able to be a British citizen and also a citizen of certain countries.

The majority of countries allow dual nationality, however, a few, such as America and India, do not. It is prudent to consider the pros and cons for applying for British citizenship if you are an EU or EU family member, as you may be better off in some instances not to apply if, for example, it would mean that you cannot own any property abroad.

One issue to consider if you are a citizen of another EU state that avoids multiple citizenships is whether your country denies its citizenship to people when they gain another citizenship, such as Austria or Netherland. In such instance, one should consider the benefit of British citizenship weighted with the con of losing Freedom of Movement (the ability to work and live freely in other EU countries) still available to EU member states after the 31st of December 2020.

How to Apply

All applications for British nationality are now online via the Government website, please note that this application attracts an application fee (currently £1,330 for Adults) and you would need to also attend an appointment for Biometric Enrolment at a visa centre near you once you submit the application online – this costs between £65-£225 dependant on location.

You (or your solicitor) can upload all the relevant evidence online before you attend the visa appointment, or pay extra to get this uploaded at the centre. It is advisable that you get your immigration lawyer to also upload a cover letter with legal representation to go with the application, as this will aid the Immigration Officer in dealing with the case, especially where there are grey areas or you want to rely on an exemption.

Successful applications – Ceremony 

Once the application is successful you receive a certificate if the applicant is under 18, but if you are an adult the process is not done until you have attended the citizenship ceremony at your local authority, where you take an oath or swear allegiance to the Queen and sing the national anthem. You are then presented a Certificate of British Citizenship, with which you can apply for British nationality. Congratulations J

If it all goes wrong

Unfortunately, things do not always go as expected, and this could be for many reasons, including not meeting the rules or a Home Office mistake. The next step is diagnosis; take the refusal decision, a copy of the application and any evidence you used to your UK immigration solicitor, who should be able to identify the issues.

Most applications are refused due to the applicant not meeting an element of the rules e.g. under good character, which would simply mean they must wait for a specific time to reapply. However, sometimes the Home Office officials do make mistakes, as do all humans, and it is thus essential that you get the decision reviewed by applying for an Administrative review by the Home Office.

An application for Administrative Review must be submitted in the right format and should include any legal representations from your solicitous as to why you believe that the refused citizenship was not soundly based on law, policy or procedure. Please note that there is a further fee of £80 for the Administrative Review process.

Brexit Ready

Whatever one’s sentiments regarding Brexit, it is happening and adapting quickly will help your stay in the UK to continue flawlessly. Applying for British Nationality is the ultimate destination as far as immigration is concerned, and especially for those able to retain their EU citizenship at the same time, they could enjoy the best of both worlds.

For those not able to apply for British citizenship, they should ensure at the very least that they have applied for leave under the EU Settlement Scheme (settled and pre-settled status) before the end of this year (by the 31st of December 2020).

Please feel free to share and comment to raise awareness of these issues. Also, if you have been affected by any of these immigration rule changes and need a quick chat with a UK Immigration Solicitor, do not hesitate to contact Tito Mbariti for a free one-off, no-obligation general immigration advice consultation via either phone, facetime, Skype or Face to Face. 

Tito Mbariti is a solicitor specialising in UK immigration, European Law and Human Rights law at Cross Border Legal Ltd  in Leicester, he has been practising  immigration law for several years with clients from various parts of the globe. He is a strong advocate of Human Rights for all, passionate about voicing important issues affecting migrants and their families in the UK. Tito is the founder and editor of Cross Border Legal, a UK Immigration  and Human Right law blog.