LEGAL ARTICLES


EU nationals must apply for permanent residence card for British nationality applications

9 NOVEMBER 2015 BY COLIN YEO at freemovement.org.uk

 

The British Nationality Act 1981 requires a successful applicant for British citizenship to show, amongst other things, that he or she is free from immigration restrictions. Technically, the requirement is set out in paragraph 2(c) of Schedule 1 to the British Nationality Act 1981, which requires an applicant to show:

 

"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"

 

Citizens of EU and EEA countries and their family members have until now been able to qualify once they have achieved the required five or three years of residence, possessed permanent residence for the last 12 months of that period and meet all the other requirements. Permanent residence is something that one acquired automatically by operation of law if the criteria are met; there is no need to formally apply for it and it is not conferred or granted by the British authorities but by automatic operation of EU law.


From 12 November 2015, however, if a person with permanent residence wishes to apply for British citizenship he or she will have to first apply for a permanent residence card. This change is introduced by the British Nationality (General) (Amendment No. 3) Regulations 2015 (SI 2015/1806).

 

As Darren Stevenson writes over on the McGill and Co blog, this is likely to cause delays:

 

"This will necessitate, unfortunately, an application using form EEA (PR), which is now 85 pages long, to acquire a permanent residence document, before an application for citizenship can be made. This will add delay and complexity. The EEA Caseworking team at the moment is extremely slow."

 

As an aside, if you read the full piece (you should) I am not sure that I would any longer agree that it is a good idea to complete the form. There is an explicit instruction reminding Home Office caseworkers that the form is not necessary and its length, complexity and the degree to which it seeks information to which the Home Office is not entitled all militate against its use.


New Upper Tribunal decision on Zambrano carers

27 OCTOBER 2015 BY COLIN YEO at freemovement.org.uk

 

OFFICIAL HEADNOTE FROM AYINDE AND THINJOM (CARERS – REG.15A – ZAMBRANO) [2015] UKUT 560 (IAC):

 

(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.

 

(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

 

(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

 

(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

 

Bit difficult to see how this squares with Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 (Free Movement write up by Desmond Rutledge: New Zambrano case: Good news and bad news for Zambrano carers). Upper Tribunal Judge Jordan does not refer anywhere to the Court of Appeal judgment in Sanneh, only to the High Court decision, which seems odd considering it was handed down before the hearing in this case.

 

It is also a little unfortunate the headnote states that Zambrano rights are restricted to the carers of British citizens as current law suggests the right can extend to carers of EU citizens if the EU citizen would be forced to leave the EU. Whoever is doing these headnotes is consistently getting them wrong.