The legal framework referenced in this article was correct at the time of writing in Autumn 2020.  The position has since changed significantly and the below is no longer accurate.  Please see our updated content: Naturalisation and CSI: Where Are We Now?

As the reality of Brexit bites, many EU nationals and their non-EU family members are looking to naturalise as British. However, a series of Home Office guidance documents released this year, ‘clarifying’ how Home Office caseworkers should handle naturalisation applications, has caused widespread alarm. Most likely to be caught out by this are the many unsuspecting individuals who thought that being granted settled status showed they had a ‘clean immigration record’, when in fact for naturalisation applications, immigration history is revisited under different criteria, often with disastrous consequences.

This issue revolved around EU nationals not having comprehensive sickness insurance (CSI), a little-known legal requirement which hardly any non-immigration lawyer-people knew about. Afterall, why would anyone get CSI when they were entitled to free NHS use? Here we dissect the problem and consider possible ways round it.

Why is this such a problem?

UKVI guidance now makes clear(er) there is an expectation that EU citizens (and occasionally their family members) should have held private health insurance, if seeking to establish lawful residence on a self-sufficient or student basis.

This is causing confusion for many granted settled status, who thought that being granted settled status meant the Home Office was satisfied with their lawful residence in the preceding five years (or three years if married to a Brit). To many, settled status represented a ‘clean bill of health’, in terms of immigration history. This has led many to apply to naturalise as British, with misguided confidence. Such people may have their naturalisation applications refused, if they are relying on a period of residence on a ‘self-sufficient’ or ‘student’ basis, unless they held CSI.

Furthermore, as well as the requirement to have been lawfully resident for five (or three) years, there is a separate requirement to be of ‘good character’. There is detailed policy guidance instructing UKVI caseworkers how to interpret this seemingly subjective and ill-defined term. One aspect of good character is immigration related issues, including a failure to ‘comply with the EEA Regulations’, within the previous 10 years’.

So, confusingly, you have one rule that you must have lived here lawfully for five years, but then, buried deep within UKVI guidance, lo and behold! A requirement to have resided here lawfully for 10 years.

Why does the Home Office expect EU nationals to have CSI?

The requirement for EU nationals to hold CSI is found under regulation 4 of the EEA Regulations, which confirms that to be classed as a ‘self-sufficient person’ or ‘student’, you must hold CSI.

The CSI requirement in respect of EEA applications is not new: prior to the EU Settlement Scheme, most EEA nationals applying for naturalisation would have had to apply for a permanent residence card, and if they were relying on being self-sufficient or a student for part of their qualifying period, would have to have confronted the CSI issue. Holding a permanent residence document was a necessary first step before applying to naturalise for most EEA nationals.

However, as the permanent residence application only cost £65, it was not the end of the world if you were refused, whilst if you succeeded then you could be confident in your naturalisation application, at least in terms of lawful residence for the five (or three) year qualifying period.

How can I meet the residence requirements for settled status, yet fail the residence requirements for naturalisation?

There are different rules for the EU Settlement Scheme – the mandatory registration system which up until August 2020 had attracted nearly 4 million  applications. To qualify for indefinite leave to remain under the EU Settlement Scheme, all the Home Office want to see is that you have been physically resident in the UK for five continuous years. If you have then, absent significant criminal offending, you will be granted settled status, which is a strong form of indefinite leave to remain (ILR).

The eligibility rules for settled status are therefore considerably more generous than those for permanent residence, and a permanent residence card. Generally, this is welcome.

But where it gets confusing is for those who have been granted settled status, but who never saw the need to apply for a permanent residence card. These people often want to complete the next logical step to secure their status; by applying to naturalise as British (most become eligible after holding settled status for one year, although if married to a British citizen, you can apply as soon as you are granted ILR).

To qualify for naturalisation, you must show you were not in breach of any immigration laws in the five year period preceding when you apply (or within a three-year period if married to a British citizen). The guidance makes it quite clear that:

‘…this grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme.’

Therefore, even though you met the residence criteria for settled status, you might not meet the residence criteria for naturalisation – even if it is the same qualifying period in question. The residence criteria for settled status and naturalisation have some important differences.

But the CSI-headache does not always stop there. Even if you satisfied the five-year residence requirement, you might have a period where you were self-sufficient or a student without CSI, within the wider 10-year period used for the assessment of good character. The guidance now suggests this could be a basis for refusal.

What qualifies as CSI?

Home Office guidance defines CSI as ‘any form of insurance that will cover the costs of the majority of medical treatment they may receive in the UK’. An EHIC card is acceptable, but only if issued by a EU member state other than the UK.

I did not have CSI. What can I do?

I will come to the area of ‘discretion’ in a second, but before you go down that road, it is worth making doubly sure that you really cannot show that you were lawfully resident here all along. Finding some alternative basis depends very much on your personal circumstances. But here are some ways that we have helped our clients to overcome the issue recently.

Did you already hold a right of permanent residence?

If you had been resident in the UK for some time prior to the problematic period, then you might have acquired a right of permanent residence. Under EU law, you do not ‘apply’ for permanent residence – yes, you can apply (or could have applied) for a permanent residence card. But that card did not ‘give’ you the right of permanent residence, it just confirmed that you had it.

So, to be clear, even though you did not apply for a permanent residence card, you might have already acquired a right of permanent residence.

If you were a qualified person for five years (for example by working and/or by being self-employed) prior to the problematic period, then you will have acquired a right of permanent residence. And once you have a right of permanent residence, then you no longer are required to hold CSI.

Case study: Raoul

male avatar

Raoul, a French national, arrived in the UK in July 2009. He worked on arrival for over five years. Raoul was then without work from 2015 to 2017. Raoul never applied for a permanent residence card. He was granted settled status in March 2019. He recently applied to naturalise but now the Home Office are querying with Raoul what his status was between 2015 and 2017, and whether he held CSI during this period.

In this scenario, Raoul would have acquired permanent residence after working for five years, so by July 2014. Raoul has not subsequently had a single absence of more than two years and so has not lost his permanent residence. It does not matter that he did not apply for a permanent residence card, but he would now need to provide evidence to show he acquired permanent residence and to show he has not since lost it. The ‘CSI problem’ then falls away, as a person with permanent residence does not need CSI.

Family member to the rescue?

It might be the case that you have (or had) a family member that you can rely on to derive your right to reside during the problematic period.

For example, you might have a family member who was a ‘qualified person’ during the period in question, and derived lawful residence as their family member. Perhaps your family member had already acquired a right of permanent residence (regardless of whether they applied for a permanent residence document).

You are more likely to benefit if you come under the definition of what is sometimes called a ‘close family member’. This includes spouses, children under the age of 21, and dependent parents.

If you were an ‘extended family member’, then to benefit in this manner you would need to have been ‘recognised’ as an extended family member at an early stage, by being issued with appropriate documentation.

Case study: Ana-Maria

female avatar Ana-Maria, a Romanian national, arrived in the UK in October 2014 aged 17, along with her Romanian mother.  Although Ana-Maria and her mother arrived in the UK at the same time, Ana-Maria lived in separate accommodation with friends. Ana-Maria did not find employment until January 2017. Ana-Maria’s mother has worked continuously since she arrived.

Ana-Maria is now concerned that this period from October 2014 to January 2017 will be held against her if she applies to naturalise.

Although Ana-Maria did not hold CSI during this period, she can show she was residing here lawfully through her mother. Ana-Maria is classed as the ‘close family member’ of her mother (who is also an EU citizen) and, as Ana-Maria was under 21 during the period in question, she does not even have to show that she was ‘dependent’ on her mother.

Therefore, the fact she did not hold CSI during this period does not matter. She will, however, need to clearly evidence her relationship to her mother and that her mother was working during this period in question.

Did you re-enter the UK during the problematic period?

Under regulation 13 of the EEA Regulations, an EU national, or their family member, is entitled to reside in the UK for up to three months on entry to the UK. For these initial three months, there is no requirement that the person be a ‘qualified person’ – which means you should not need to have held CSI for that three-month period.

What if you left the UK, perhaps to go on holiday or for a brief spell back in your home country and then re-entered the UK within the problematic period’? Does that trigger a fresh three-month right to reside? By law, it seems to. Depending on your circumstances, getting that three-month ‘grace period’ re-triggered could make all the difference.

However, a word of caution. We ran this argument before, and the Home Office referred the case to their ‘policy team’. It seems they do not like this approach – they ‘sat’ on our application for a long time. We were eventually granted, but we had bolstered our case with a ‘discretion’ argument (see below), and so we do not know which argument succeeded (sadly they do not tell you what your winning argument was!). I would probably caution against running this argument, unless running as a secondary one.

CSI and discretion

If all else fails, you can try and get the Home Office to exercise discretion to overlook you not having CSI. When you apply to naturalise, if you answer that you did not hold CSI, then must explain why.

The guidance makes clear that the caseworker must consider whether he or she should overlook any lack of CSI by ‘exercising discretion’. Unfortunately, the guidance does not state the positive factors which could count in your favour.

The guidance does state that if you were refused a permanent residence card previously on the grounds of not holding CSI, and did not subsequently obtain CSI, then you would need ‘compelling grounds to exercise discretion’.

Whilst there may be a danger of over-analysing words which are perhaps poorly expressed, I would parse the following from this section of the guidance:

  1. If you were previously refused CSI at the permanent residence card stage, and following this refusal still failed to get CSI, then you are likely to be in trouble as you would need to show ‘compelling grounds’. It is not clear what would constitute compelling grounds, but you would presumably need some very good (perhaps exceptional) reason for not getting CSI in these circumstances.
  2. If you were previously refused CSI at the permanent residence card stage, and following this obtained CSI, you are clearly in a stronger position and would not need compelling grounds.

Annoyingly, the guidance does provide sufficient clarity to what I imagine are the largest group of people concerned about this issue – EU nationals and family members who never applied for a permanent residence document but were recently granted settled status, yet were completely oblivious to the CSI requirement. How these people’s applications will be treated remains unclear.

By setting out a ‘compelling grounds’ test for this narrow group of people who failed to get CSI after being refused a permanent residence document, there must be a lower threshold in case where people were simply unaware of the CSI requirement.

The following summarises my own views on how to approach the area of discretion, based on my reading of the guidance backed up with some anecdotal evidence:

  1. A CSI transgression over the five (or potentially three) years immediately preceding the date of application is more serious than one covering the rest of the 10-year period
  2. If you were previously refused a permanent residence card due to the CSI issue, and did not then obtain CSI, then you would need some strong mitigation (and evidence) to overcome this
  3. If you are going to argue discretion, make as strong a case as possible. If you were simply unaware of the CSI rule, it may help you to advance any personal reasons why you were not able to understand the rule? You might also want to provide additional evidence to show that you are generally a ‘good person’? For example, can you evidence a ‘positive contribution’ to UK society. Bear in mind that your application will fall on the desk of a UKVI caseworker who is operating with a similar lack of clear guidance. There appears to be a lot of discretion, so make the caseworker want to grant in your favour!

Final thoughts

If you think you have a ‘CSI problem’, then you might consider the following:

  1. Have you checked whether, during the problematic period, you in fact derived a right of residence through some other means, such as a being a ‘family member’?
  2. Failing that, how long would you have to wait until the ‘problematic period’ is outside of the relevant computation period? The shorted the wait, the greater the argument to sit this out and apply later.
  3. Does your problematic period fall within the five (or three) year period, or within a later part of the 10-year period? If it in a later period, then it appears to be less problematic.
  4. Consider whether you should get legal advice, see below.

As ever, my legal analysis above is my own take on the CSI issue, based on Home Office guidance which lacks clarity, and based on anecdotal evidence. Others may take a different view.

If you think you might want assistance on this matter, we provide a variety of immigration legal services to help. This includes detailed advice, document checking and full representation where we take care of the whole application process for you. Please get in contact with us.

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Catherine Reynolds
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