Preparing for the Brexit—the dual nationality trend - as published on LexisPSL

Immigration analysis: According to research by the Guardian, fear of Britain exiting the EU (known as ‘Brexit’) is prompting many EEA nationals resident in the UK to apply for British citizenship. Owen Jones, a partner at Doyle Clayton Solicitors, takes a look at the legal aspects of this trend.

How is the possibility of a Brexit fuelling applications for dual nationality?

Traditionally most European nationals working in the UK, or living here, have been happy to retain their current nationality and rely solely on European free movement laws as their long term right to reside freely in the UK—and work for the employer of their choice. Only a limited number had previously chosen to seek to naturalise as a British citizen and obtain a UK passport. 

However, many of the European nationals who have not sought British citizenship to date have actually already become eligible to apply to naturalise as a British citizen—due to the length of time that they have lived in the UK and having ‘exercised their Treaty rights’ for the relevant time period. They must also be able to meet the other eligibility requirements for naturalisation as set out in the British Nationality Act 1981. These broadly are that the person is over 18, that they are of good character, that they can meet a “knowledge of language and life in the UK requirement” and that they intend to make the UK their main home.

With the chances of a Brexit more possible than at any other time in recent memory some European nationals are choosing to shore up their right to live and work here through obtaining British citizenship. Since November 2015 European nationals have been required to first apply for and obtain documentation from the Home Office to prove that they have acquired permanent residence (PR) status in the UK. Whilst PR status is automatically acquired after five years’ residence in the UK exercising Treaty Rights, and allows them to live and work here indefinitely, evidence of this PR status, in the form of a Permanent Residence Card, is now needed. 

Broadly speaking, PR can only be lost if the person has been outside the UK for more than two consecutive years, or if they are expelled on serious public policy, health or security grounds, or on the grounds of abuse of rights. British citizenship, on the other hand, cannot be lost unless the person renounces it, or is deprived of it because this is considered conducive to the public good or there is evidence that the citizenship was obtained by fraud or deception.

If the UK were to leave the EU, would having dual nationality give that individual the freedom to choose where to reside?

Yes. Such a dual national has the right of abode in the UK as well as the right to live in their original country of origin. Should Brexit occur, by obtaining British citizenship, individuals will have protected themselves from any possibility that they could be required to leave the UK.

It is very important to note that there are a number of countries in the EU that do not permit their nationals to hold dual nationality unless special permission is obtained (for example Austria, Germany, and the Netherlands). The same applies for Norway, which is an EEA state, and as with all EEA states and Switzerland, is treated for the purposes of EU free movement law in the UK as if it were an EU state. For nationals of the countries that do not generally permit dual nationality, obtaining UK citizenship would ordinarily have the effect of renouncing their original nationality, sometimes permanently. It is therefore important for individuals to consider the implications of obtaining UK citizenship carefully before acting.

How does dual nationality of one parent affect the immigration status/choices of spouses and children?

A dependant spouse or a dependant child can in many cases obtain the right to live with their spouse or parent in either of the countries of which that spouse or parent is a national and resident. Many countries, including the UK, allow the spouse or children to also obtain residence and a new passport after living in the country for a requisite qualifying period.

Since 2012 a new financial requirement has been controversially introduced into UK law in relation to non-EEA national family members of British citizens. This financial requirement means that a British citizen must demonstrate that they have met a minimum income level, or retained a minimum savings level, if they wish to bring their spouse and/or children to the UK to live with them. The financial requirement therefore currently prevents some British citizens from being able to live with their families in the UK.

In general, this financial requirement does not apply to European nationals bringing their families with them to the UK when exercising EU Treaty rights (such as working). However, it is very important for European nationals considering naturalisation to be aware that, since 16 July 2012, a person who is a national of one or more other EEA states and is also a national of the UK, will not be able to benefit from EU free movement law in the UK (subject to certain transitional arrangements). This is the result of the UK implementing the CJEU’s judgment in McCarthy v SSHD: C-434/09 [2011] All ER (EC) 729 via the Immigration (European Economic Area) (Amendment) Regulations 2012, SI 2012/1547, Sch 3). As such, on naturalisation of the EEA national, any non-EEA national family member (unless they have already acquired PR or a transitional arrangement applies) will have to obtain leave to remain under the domestic immigration rules.

How can such individuals obtain British citizenship? What are the challenges?

EEA nationals that have lived and worked (or exercised other Treaty rights) in the UK for six years will generally be eligible to apply for naturalisation as a British citizen. However, since November 2015 it has been necessary for them to have first applied for a Permanent Residence Card proving that they have PR status. The naturalisation application process itself also contains some peculiarities and pitfalls and appropriate advice should be taken to ensure success. Applications take a number of months to be processed and, during at least some of this period, individuals can be without certain key documents such as passports. It is, however, possible to keep this period to a minimum.

Once the application for naturalisation is approved, the individual will obtain an approval letter and must then make arrangements to attend a citizenship ceremony (which includes making an oath or affirmation of allegiance and receiving a certificate of naturalisation). Only after that ceremony can a separate application be made for a British passport.

Owen Jones was interviewed by Alex Heshmaty for LexisPSL.