Naturalising as a British Citizen for EEA Nationals – the McCarthy Banana Skin

Many EEA nationals now facing an uncertain immigration position in the UK are considering applying for naturalisation. Under the current law, an EEA national who has been residing in the UK and economically active (by working, studying, self-employment, self-sufficiency or looking for work) known as ‘exercising treaty rights’) for a continuous 5-year period will automatically gain a legal status known as ‘permanent residence’, and 1 year after they gain this status they can potentially apply for naturalisation as a British citizen.

The requirements are set out elsewhere, for example in this recent post.

The third-country national (i.e. not EEA) family members, which include the spouse and children of the EEA national, may have accompanied the EEA national to the UK or joined them here. Whilst the EEA national continues to have a right to reside in the UK under the EEA Regulations (i.e. whilst they are exercising treaty rights), the third-country national family members also have a right to reside in the UK, and they may apply for documentation in the form of an EEA residence card, which will be valid for 5 years.

However, in contrast to the position under the Immigration Acts, the rights attaching to EEA nationals and their direct family members are created and ended automatically by operation of law.  That is, no administrative act is required to bring them into existence, or to end them.  This means that the underlying right to reside of the family member can fall away even though their documentation (i.e. the EEA residence card) is still valid.  Once the underlying right has fallen away, the holder may be unable to obtain permanent residence when they have completed their 5-year qualifying period, and they also run a risk of being refused re-entry if they leave and return to the UK.

This principle creates problems in practice due to an amendment made to the EEA Regulations as a result of the McCarthy judgment (Case C-434/09 McCarthy – not to be confused with the more recent Case C-202/13 judgment concerning Article 10 residence cards). The amendments mean that a person is not categorised as being an EEA National if they are also a British citizen.

This means that if the EEA national - on whose presence in the UK the right to reside of the third-country national family member is based – naturalises as a British citizen before the third-country national family member has completed their qualifying period for permanent residence, then the family members will lose their right to reside in the UK effective from the date of the naturalisation ceremony.

This situation arises in practice most often where the family members of the EEA national have joined them in the UK at a later stage, or where it is decided on costs grounds to only apply for the main migrant.

The takeaway message is that if an EEA national is naturalising as a British citizen, and their third-country national family members do not intend to apply for naturalisation at the same time, the advice of an experienced practitioner should be sought, as it may be necessary to apply to switch the immigration status of the family members.

Learn more about Alexander Finch.