It seems a long time ago, but on 31 January 2020 the UK left the EU. We believe this to be definitely true, not least because we saw them removing the British flag from the EU Council building in Brussels – a symbolic act indeed. But we are now in a “transition period”, and complexities are still emerging in the immigration field.
To recap, because of Brexit the Home Office had to create some sort of immigration scheme such that EEA nationals and their family members (of any nationality) who were already in the UK could stay here, but stay here under British law, not EU law.
So they adroitly created the EU Settlement Scheme (EUSS). The Home Office often comes in for a lot of criticism, and sometimes justifiably so, but here they did well. They made a very simple method for relevant migrants to apply for status, which is either Pre-Settled Status (for those who have been in the UK for less than five years) or Settled Status (for those who have been here at least five years).
Not only is the application method simple – in most cases paperless – but a huge number (around three million) have successfully applied since early 2019. And hearsay reports suggest that the Home Office staff administering the scheme are actually kind and helpful. And it is free.
One supposes that the Home Office had to make the EUSS simple otherwise the whole thing would have got completely bogged down but, in any event, credit must go to them for dealing so efficiently with such a mammoth task.
Now, on the face of it, Pre-Settled Status looks like the old EEA Residence Card status under EU law and Settled Status looks like Permanent Residence status under EU law. Settled Status is also described as “Indefinite Leave to Remain”, and it was historically the case that Permanent Residence and Indefinite Leave to Remain meant the same thing albeit granted under different laws.
In our experience there was initially at any rate a widely-held assumption that Settled Status/Indefinite Leave to Remain had the same effect as Permanent Residence. So it followed on from this that those who held Settled Status could boldly go and apply for British naturalisation if they wanted it and if they appeared to qualify for it.
Applicants for British naturalisation must show that they have lived lawfully in the UK for a specific period (typically five years) and also that they are settled in the UK – ie free from immigration restrictions. There are different rules for those who are married to British citizens and those who are not: the former only have to show that they hold settlement when they apply; the latter have to show that they have held settlement for at least 12 months.
But a look at the “fine print” (some of which only emerged quite recently) shows that Settled Status is not the same as Permanent Residence, and does not have all the same effects. This is the case in two different ways. Firstly, and unlike Permanent Residence, Settled Status cannot be backdated. If for example you have lived in the UK for 30 years and are granted Settled Status your settlement only begins on the date on which you acquired Settled Status. This of course makes life difficult for those who want to show that they have held settlement for 12 months.
And, secondly, a migrant who holds Settled Status and applies for British naturalisation comes up against the difficult fact that they have not really proved that they have been living lawfully in the UK for the relevant period. This might seem rather strange, but there is a certain logic behind it.
The Settled Status application is, as we said, very simple. It is nowhere near as thorough as the Permanent Residence application. And, as we also said, the Home Office needed to produce a fast and efficient method of regularising a vast number of migrants. Someone who holds Settled Status has only really proved that they have been around in the UK for the relevant period. They have not proved that they have met all the relevant EU law requirements that they would have had to meet to qualify for Permanent Residence.
So if you hold Settled Status, not Permanent Residence, and you want to apply for British naturalisation you need to well understand the legal requirements. Your best option might be to first apply for Permanent Residence: the fee for British naturalisation (£1,330) would be quite adventurous for a weak application.
You may therefore in this situation want to take competent legal advice before deciding what to do. Our expert Immigration Lawyers & Consultants at GSN Immigration will assist you with all aspects of your application so that your application is successful the first time.
OISC Level 3 Immigration Lawyer