A Case Study on the Complexities of Moving from Settled Status under the EU Settlement Scheme to British Citizenship

If an immigration solicitor tells you that moving from settled status under the EU Settlement Scheme to British citizenship is complicated it is hard for you to understand why. This case study, of a typical enquiry our British citizenship solicitors receive, explains how the British citizenship eligibility criteria doesn’t always fit neatly with an EU national with settled status looking to move from settled status  to British citizenship.

UK Online and London Based Immigration and British Citizenship Solicitors

If you have settled status and want to apply for British citizenship the expert British citizenship and immigration team at London based OTS Solicitors can help you. Call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.

A case study highlighting the complexities of settled status to British citizenship

Carlos, a 39 years old, single male professional from Spain has lived in the UK for the fourteen years. In February 2020 he applied for settled status under the EU Settlement Scheme.

 

2020 was quite a year for Carlos as he lost his job in the UK and, in February 2020, he decided to return to Spain to look after his mother. The global COVID-19 pandemic broke out and Carlos stayed in Spain. Sadly, his mother passed away but Carlos remained in Spain to support his family.

 

In August 2020, Carlos was granted his settled status. This was a relief to him as he was still living in Spain and had not been able to get another job in the UK. Getting British citizenship is important to Carlos so he has scheduled his English language test and Life in the UK test for July 2021. Carlos then plans to apply for British citizenship by September 2021. Carlos doesn’t plan to return to the UK immediately as once the pandemic eases, he wants to travel outside of the EU for a while.

Whilst this is someone’s life, to immigration solicitors it presents as a challenge as whilst it is great that Carlos has settled status  there are many hurdles to his converting his settled status to British citizenship.

Some may assume that Carlos won't face any issues with acquiring British citizenship as he has settled status and because he meets the eligibility criteria for British citizenship as he has lived in the UK for five years or more. It isn’t that simple.

Carlos faces the following problems:

Date of settled status and timing of the British citizenship application – as Carlos isn’t married to a British citizen and as he didn’t apply for permanent residence, he has to wait twelve months from the date he secured settled status to apply for British citizenship. Therefore, the earliest Carlos can apply to become a British citizen is August 2021.

The five-year residence requirement for British citizenship- although Carlos lived in the UK for fourteen years the rules on the residence requirement for a British citizenship application are complicated. That’s because the residence period is always counted backwards from the date of British citizenship application. Therefore, Carlos must have been in the UK five years before he submits his British citizenship application. If Carlos goes off travelling, he may end up not meeting the five-year residence requirement for British citizenship.

The residence must be lawful – Whilst Carlos may be affronted by the idea that his residence in the UK might not have been lawful (as after all he secured settled status under the EU Settlement Scheme) the legal position is complicated. The Home Office can class your residence in the UK as lawful for the purposes of your settled status application but not lawful for the purposes of your British citizenship application. Why the difference in approach? If an EU citizen didn’t work in the UK continuously for five years, then they may not have exercised treaty rights if they were not in employment during all or part of that period and weren’t looking for work or didn’t have comprehensive sickness insurance cover. If you aren’t certain if your five years of UK residence counts as ‘lawful’ for your British citizenship application it is best to get immigration advice so your application can ask that Home Office officials to exercise discretion and grant your British citizenship application.

The residence must be continual - The British Nationality Act 1981 says that an applicant for British citizenship must not have been outside the UK for more than 450 days over the five-year residence period. In addition, an applicant can't have spent more than 90 days out of the UK in the final year of residence before the British citizenship application.

In Carlos’s case, he has been out of the UK for over 90 days in the year before his British citizenship application. The Home Office can exercise some discretion over this but the applicant must be intending to make the UK their home or principal home. Therefore, questions may be asked about Carlos’s plans if he intends to go travelling indefinitely or plans to spend significant periods of time in Spain after his return from his travels. In addition, where absences exceed 180 days in the final year before the British citizenship application the Home Office will want Carlos to demonstrate strong links to the UK, such as a home or job or the presence of family in the UK. On the facts, and given Carlos’s travel plans, he may struggle with this unless he changes his plans or the timing of his application.

In cases where there are what are referred to as ‘excess absences’ for the final year and during the five-year qualifying period the Home Office can be persuaded to exercise discretion in cases they deem to be exceptional and where the applicant has demonstrated that they have made the UK their home.

At OTS Solicitors we take a thorough look at all your circumstances before submitting an application for British citizenship. That way we can look at whether the Home Office need to be asked to exercise discretion when determining a naturalisation application and to fully and compellingly explain why.

UK Online and London Based Immigration and British Citizenship Solicitors

Our expert London based immigration solicitors can answer your moving from settled status to  British citizenship questions. For the best advice on settled status and settlement in the UK call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.