On November 12 2015 the Home Office quietly slipped through a change to the law requiring European nationals and their families to obtain confirmation that they have acquired permanent residence before they can apply for British citizenship. Following the Brexit vote, the timing of that change to the law feels ironic now, as many European nationals look to apply for British citizenship to secure their right to remain in the United Kingdom.

Applying to the Home Office for a document certifying permanent residence was not something that Europeans had previously needed to do. Applications for British citizenship could be made directly as long as evidence was provided to show that permanent residence was acquired at least one year before the application date.

Only those who have held permanent residence for at least one year may apply for naturalisation as a British citizen. Now that the requirement to obtain a document certifying permanent residence has been introduced, it raises the question as to when an application can be made. Will the Home Office try to argue that the one-year period should start from the date on which the confirmation of permanent residence is obtained?

Under European law, the acquisition of permanent residence as a European national – or as the family member of a European national – happens automatically, taking effect from the day that the European national meets the criterion of having remained in the United Kingdom as a qualified person for a continuous five-year period. Arguably, European nationals and their families thus should not have to wait until they have received confirmation and should be able to count the requisite one-year period from the trigger date. European nationals and their family members should provide evidence with their applications to show that the five-year period spent as a qualified person ended at least one year before the application date.

Since the introduction of this change, attempts have been made to speed up the process by making combined applications for a document certifying permanent residence and citizenship, in the hope that the two government departments would talk to each other.

A Home Office employee in the European Casework Directorate even went so far as to say that such applications would be accepted. However, this turned out to be overly optimistic and the Home Office has since confirmed – through a letter from Caroline Hughes, the deputy chief caseworker of nationality and permanent migration at UK Visas and Immigration – that effective from August 1 2016 it is not possible to combine the permanent residence and citizenship applications. Her letter further confirmed that applications made for citizenship where confirmation of permanent residence has not first been obtained will be processed and refused. Applicants must first obtain permanent residence documentation.

For further information on this topic please contact Brian Naumann at Magrath LLP by telephone (+44 20 7495 3003) or email (brian.naumann@magrath.co.uk). The Magrath LLP website can be accessed at www.magrath.co.uk.

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