The Home Secretary has a lot of power over naturalisation, the process by which foreign nationals can acquire British citizenship. The criteria for naturalisation are set out in the British Nationality Act 1981, but that Act also empowers the Home Secretary to waive many of the criteria if she sees fit. This has been done before, and I argue it should be done again for those EU citizens who are being told they need Comprehensive Sickness Insurance (CSI) in order to naturalise.
Background: the return of CSI
CSI is one of the most tiresome and frustrating contrivances in UK immigration law, a scandalously poorly advertised requirement for certain migrants to hold private health insurance or a European Health Insurance Card despite being entitled to use the NHS. It was only introduced in 2011 and has always been legally questionable, with several challenges to it currently pending before the Court of Justice of the European Union.
In a recent post, I highlighted the Home Office’s latest policy on CSI and citizenship. Officials will scrutinise whether citizens of European Economic Area (EEA) countries were resident in the UK in accordance with the EEA Regulations for up to ten years prior to their citizenship application. For certain EEA citizens — those living here as students or self-sufficient persons — compliance with the EEA Regulations means having CSI.
The policy is likely to affect those granted settled status under the EU Settlement Scheme, for which there is no requirement to prove residence in accordance with the EEA Regulations. It seems entirely contradictory that the government on the one hand is happy to ignore CSI for settled status, yet still wants to pick over its bones when it comes to citizenship.
For EEA nationals potentially affected by the policies on CSI, there are two separate (but overlapping) naturalisation requirements that must be overcome: the residence requirements, which span a three or five year period depending on whether they are married to a British citizen, and the good character requirement which spans a ten-year period.
Both these requirements are set out in primary legislation, enacted by Parliament. But as we shall see, that law empowers the Home Secretary with a very wide discretion to waive certain criteria and set her own policies. It is in this wide discretion that we find the alternative approach.
The residence requirement problem
The residence requirements for naturalisation are at Schedule 1 to the British Nationality Act 1981. For applicants married to British citizens, the residence requirements focus on a three-year period; for everyone else, a five-year period. We will focus on the five-year period, for which the requirements at paragraph 1(2) of Schedule 1 are:
(a) that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and
(c) that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and
(d) that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.
How does a citizenship applicant prove that they satisfy point (d)? Some EEA nationals may have obtained old-school blue cardboard documents certifying acquisition of permanent residence under the EEA Regulations. These documents will normally certify that the person was lawfully resident for the five years prior to their date of acquisition. So people in this category should have no problems with the five-year residence requirement.
Crucially, though, a grant of pre-settled or settled status under the EU Settlement Scheme does not confirm that the recipient was lawfully resident at any time prior to the date of grant. Therein lies the problem. Before getting settled/pre-settled status, many EEA students, homemakers and self-sufficient people without CSI were probably living in unknowing breach of the EEA Regulations, and thus “in breach of the immigration laws”.
The Home Office’s interpretation is strict (although not, in my view, unlawful) and there is an obvious alternative.
The residence requirement solution
Notwithstanding the strict residence requirements, the British Nationality Act 1981 also contains provisions for the Home Secretary to waive them. Paragraph 2(1)(d) — or 4(b) for those married to Brits — of Schedule 1 to the Act says:
If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 do all or any of the following things, namely—
… (d) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d) although he was in the United Kingdom in breach of the immigration laws in the period there mentioned.
And there you have the solution. Nothing is preventing the Home Secretary from using this power. It is certainly arguable there are special circumstances (cough *Brexit* cough).
More importantly, there is precedent for the Home Secretary using this power. Lawyers practising long enough will remember the “legacy programme”, which operated (roughly) from 2006 to 2011. This was effectively a mass amnesty for an estimated 400,000-500,000 failed asylum seekers who could not be removed from the UK. The vast majority were eventually issued indefinite leave to remain in the UK at the Home Secretary’s discretion.
One year after indefinite leave to remain, many beneficiaries of the legacy programme sought to naturalise as British citizens. And they did, successfully. But what about the lawful residence requirement at paragraph 1(2)(d)? Their residence in the UK was unlawful in the lead-up to their grant of indefinite leave to remain. And unlike those without CSI, the people granted under the legacy programme knew they were here in breach of the immigration laws.
This is where the power at paragraph 2(1)(d) came in. The Home Office used it to come up with a policy stating that officials would normally overlook a breach of the immigration laws if
… an application for asylum or leave to remain was refused but, the application was reconsidered and ILR was granted outside the Rules – in this case, we may overlook any period of breach from the date the original (unsuccessful) application was made.
How easy would it be to adopt a similar policy covering EEA citizens? It could go something like this:
The Secretary of State will normally overlook a previous breach of the immigration laws if an application for indefinite leave to remain has been granted under the EU Settlement Scheme.
There is arguably a much greater public interest in allowing EU settled status holders to naturalise than there was with the legacy cohort. Unlike that group, only a small minority of Europeans are likely to have known that their residence without CSI was ever a problem. That lack of knowledge brings us on to the second issue.
The good character requirement problem
Anybody who applies for naturalisation needs to be “of good character”. Like the residence requirement, this is in Schedule 1 to the British Nationality Act 1981. It is up to the Home Secretary to determine if someone is or is not of good character.
Since 2014, the Home Secretary has operated a good character policy that requires caseworkers to look back at an applicant’s immigration history in the UK over the preceding ten years. If an applicant has been unlawfully resident during this ten-year period, they will likely fail the good character test.
So even if the Home Secretary uses her powers to waive the residence requirement in relation to breach of the immigration laws in the past five years, we are still left with the ten-year good character requirement to overcome. This potentially creates yet more problems for EEA nationals. Even those granted documents certifying permanent residence under the EEA Regulations could potentially get caught by the ten-year period.
Take a person confirmed as having acquired permanent residence on 1 January 2018. This means they have been confirmed as having lawfully resided in accordance with the EEA Regulations since 1 January 2013. But what if they were a student without CSI between 1 January 2010 – 1 January 2013? Under this policy, that period could potentially catch them out and result in failure of the good character test.
Although immigration lawyers understood that EEA students or self-sufficient people without CSI would be in breach of the immigration laws, this was never explained or communicated by the government. EEA nationals could enter the UK freely by showing their valid passport or ID card at the border. There was never any follow-up communication about EEA Regulations requirements for lawful residence.
Is an unknowing failure to get CSI really a character issue? In my view it is not. The old lawyers’ adage ignorantia juris non excusat (ignorance of the law excuses not) may be true when it comes to crime, but not necessarily so when it comes to an assessment of a person’s character. CSI is a highly technical requirement and should be distinguished from other types of unlawful residence or knowing overstaying.
The good character solution
The solution to the good character issue is simple. The Home Secretary makes the policy; the Home Secretary can modify it. It is entirely within the Home Secretary’s gift to add an exception for CSI issues in the preceding ten years and authorise caseworkers to normally overlook breaches. Doing so would enable EU applicants to make their citizenship applications and will likely save many caseworker hours attempting to investigate issues with the soon-to-be-defunct EEA Regulations.
Why put people through all this?
What I’ve tried to show is that there is no legal barrier to dropping the demand for CSI as a condition for citizenship. The real question is, what are the non-legal reasons for this policy? Why we even talking about all of this? In the midst of a pandemic, with Brexit looming, who in government actually cared enough about denying citizenship to long-term residents to have sat down and written up a new policy on it?
With some quick and simple changes to the policies on residence and good character, CSI could be consigned to the dustbin of history where it belongs, making life simpler for applicants, lawyers and caseworkers alike. Who wouldn’t want that?