On 1 February 2022, the government agreed to amend the Immigration Rules to end the unfairness faced by EU citizens who successfully obtained British citizenship, despite a historic lack of Comprehensive Sickness Insurance, only to find that they were unable to sponsor family members to join them under the EU Settlement Scheme.
Who does this Immigration Rules change affect?
The amendment relates to dual nationals of an EU country and the UK who have a period in their immigration history where they required Comprehensive Sickness Insurance (CSI) but did not have it. As explained in a previous article, EU citizens who were present in the UK as students or self-sufficient persons under the Immigration (EEA Regulations) 2006 (as amended in 2016) (‘The Regulations’), required CSI. However, this requirement was not widely known about. It was not publicised by the Home Office which did not require EU citizens to register their presence. This was compounded by the fact that EEA citizens have always been permitted to access the NHS, so had no need for private health insurance.
When the EU Settlement Scheme was introduced, the Home Office decided to make eligibility conditional on residence in the UK. This residence did not have to be lawful in accordance with the Regulations. This meant that EU citizens with a previous gap in their CSI had no problems obtaining Settled Status (Indefinite Leave to Remain).
The next step for many EU citizens living in the UK who wanted security in light of Brexit was to naturalise as a British citizen. At this stage, a historic gap in CSI could lead to a refusal based on the fact that they were in the UK ‘in breach of the immigration laws’ in the relevant 5 year or 3 year qualifying period; or a refusal based on not meeting the requirement to be of ‘good character’ as a result of their immigration history. However, the Home Office issued guidance to caseworkers explaining that they could exercise discretion to waive a breach due to lack of CSI, and when assessing the good character requirement. This means that many EU citizens in this position successfully naturalised as British citizens.
What was the problem?
The EU Settlement Scheme defines ‘EEA citizen’ in a manner that includes a ‘relevant naturalised British citizen’. This implements the decision in Lounes which recognised that EU citizens who obtained British citizenship after exercising free movement rights in the UK should not lose the ability to sponsor their family members to join them in the UK under EU free movement law.
The problem lies in how ‘relevant naturalised British citizen’ is defined in Appendix EU and Appendix EU Family Permit. This refers back to certain provisions of the EEA Regulations, and essentially required the person to show that they had been living in the UK lawfully, in accordance with the Regulations, at the time they obtained British citizenship. They could not meet this requirement if they had a period where they required CSI but did not have it. As such they could not sponsor family members to join them in the UK under the EU Settlement Scheme.
This meant that even though the Home Office did not require lawful residence to obtain Settled Status, and then exercised discretion in relation to a CSI gap to grant British Citizenship, they were in a worse position in relation to sponsoring family members than they would have been if they had not opted to obtain British citizenship.
What has the government agreed?
The Minister of State for the Home Office, Baroness Ludford confirmed in the House of Lords that:
‘The Government have decided that, as a matter of fairness, they will amend the Immigration Rules for the EUSS and the EUSS family permit at the next appropriate opportunity to disapply any requirement for a Lounes dual national to have held CSI in order to sponsor applications by relevant family members.’
This is a welcome change as it corrects a real unfairness and removes the obstacle for dual EU-British citizens to be joined by family members under the EU Settlement Scheme.
The Home Office announced this in the context of a tabled amendment (now withdrawn) to the Nationality and Borders Bill, which sought much wider changes. In particular, it was proposed that EU citizens should not be treated as being in breach of immigration laws for lack of CSI and should not be considered to not meet the ‘good character’ requirement on account of not holding CSI during their residence in the UK. This would be as a matter of law, without the need to exercise discretion. The government did not agree to this, referring back to their published guidance which permits discretion to be exercised ‘in the special circumstances of any particular case’. The Minister confirmed that to date, she is not aware of anyone having been refused naturalisation solely because they did not have CSI. This is encouraging, but is not entirely helpful to those weighing up whether or not to make a costly application to naturalise, where there is a risk that their application could be refused if discretion is not exercised.
If in practice, no-one has been refused British citizenship for this reason (and, it seems unlikely that anyone will be in the future), it would be much better for this to be set out as a matter of law rather than left up to the discretion of a caseworker, in the interests of legal certainty, clarity, consistency and predictability.
For now, it remains advisable to carefully address the reasons for any historic lack of CSI in any application to naturalise to have the best chances of success.
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