Are you an EU national of Good Character?

Isaac Abraham, a Senior Caseworker in our immigration department writes about the Home Office’s recent update to its guidance about the Good Character requirement to naturalise as a British citizen.  

On 2 October 2020 the Home Office published the latest iteration of its nationality policy guidance on the Good Character requirement. The guidance is a must read  for anybody who is making an application to naturalise as a British citizen and this update, in particular, is important for any applicant who is an EEA national or is the family member of an EEA national.

The Good Character requirement is one of a number that an applicant must meet in order to be deemed ‘worthy’ of naturalising as a British citizen. There is no statutory definition for ‘Good Character’ and so the question of what does and does not constitute good character is one that is entirely at the Home Secretary’s discretion.

The big addition made in this iteration of Good Character guidance is a new sub-section on ‘non-compliance with immigration requirements’ for EEA nationals and their family members. The updated guidance directs caseworkers to consider if an individual was ‘compliant’ with the EEA Regulations 2016 in the ten years prior to the date of application.

This may seem a fairly low hurdle to overcome at first – a vast majority of EEA nationals have lived in the United Kingdom without having to engage at all with the Home Office and so may assume that they have been compliant. However, and as alluded to by the Good Character guidance, it is the requirement that some EU nationals and their family members hold Comprehensive Sickness Insurance (‘CSI’) that may prove fatal to some applicants.

The Home Office’s position is that it is a legal requirement for any individual who is either (a) self-sufficient, (b) a student, (c) the family member of anyone who falls within (a) or (b) to hold CSI. It is important to note that category (c) includes a primary carer with derived rights granted as a result of the ‘Chen’ judgement and that category (a) may, for example, include an EEA national who is married to a British citizen and does not work.

The requirement to hold CSI does not include the self-employed or employed, and so anyone who has for the last ten years fallen exclusively within one of these two categories is likely to be unaffected by this change.

Holding Comprehensive Sickness Insurance does not mean simply demonstrating that an individual has been able to use the NHS (as this will have been the case for all EEA nationals). Rather, an individual has to demonstrate that they had some right to access NHS care – most commonly, this is done through producing a comprehensive private medical insurance policy document or a valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK that was valid for the duration of the period that CSI was required.

The new guidance means that where an individual required to hold Comprehensive Sickness Insurance within the last ten years did not do so, their application may be refused on the basis that they are deemed to not be of ‘good character’.

It is important to note that individuals who may have fallen foul of this but now hold settled status are not protected from this past non-compliance. This is because an individual need not have held Comprehensive Sickness Insurance, for example, to have obtained Settled Status given that the requirement is simply one of demonstrating five years’ ‘residence’.

In an acknowledgment of this, the Home Office has directed its caseworkers to look behind the grant of Settled Status and consider if an applicant was, actually compliant with the EEA Regulations 2016. This means that if you have Settled Status and also held Comprehensive Sickness Insurance, it is not enough to simply provide evidence of the former on the assumption that the Home Office will view your Settled Status as confirmation that you were compliant. You must provide evidence of the latter.

All in all, this is a significant harshening of the requirements to naturalise as a British citizen, particularly at a time where more EEA nationals than ever before will be making applications. The only olive branch to EEA nationals extended by the Home Office in instituting this change is that it requires that caseworkers consider ‘exercising discretion’ if the lack of CSI will be the sole ground of refusal.

The reality is that most people have not held CSI simply because they did not know they needed to. While this is not, in and of itself, going to be a persuasive reason for discretion to be exercised, the Home Office does acknowledge in its general ‘Naturalisation by Discretion’ guidance that where the “the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI” and an applicant “can provide sufficient evidence to justify discretion being exercised in their favour” a caseworker might exercise discretion.

There is no one set definition of what “sufficient evidence to justify discretion being exercised in their favour” will constitute, and the merits of making a naturalisation application where an individual has not held CSI over the last ten years will depend entirely on an individual’s circumstances. It is likely that the safest option for many, given the non-refundable £1330 naturalisation application fee, will simply be to wait until they have been ‘compliant’ in the ten years prior to an application.

If you are an EEA national or the family member of an EEA national and feel you will be affected by this topic please contact us for advice. Isaac is available at i.abraham@wilsonllp.co.uk or call 0208 808 7535 to find out how we can assist you.