Naturalisation. Residence requirements. Breaches of immigration law in the qualifying period
If you apply to naturalise as a British citizen, you must satisfy the residence requirements. One of these requirements is that you were not in the UK in breach of the immigration laws at any time in the period of 5 years ending with the date of the application.
If you are married to a British citizen, the requirement is that you were not in the UK in breach of the immigration laws at any time in the period of 3 years ending with the date of the application.
This requirement means that you must not have been unlawfully resident in the UK in the period of 3 or 5 years ending with the date of the application. To find out whether you have been at any point unlawfully resident in the UK, you must know what it means to be lawfully resident.
You are lawfully resident in the UK where you have the right of abode in the UK (you are allowed to live or work in the UK without any restrictions), or you have limited or indefinite leave to enter to remain (settled or pre-settled status if you are Swiss or non-Irish EEA national), or you are Irish, or a member of a crew of a ship or of an aircraft.
You are also lawfully resident in the UK if you are exempt from immigration control, or have disembarked at a UK port and still in the immigration control area, or if you have been detained or given immigration bail.
If you are a non-Irish EEA citizen, you were lawfully resident in the UK before 31 December 2020 if you worked as an employee or as a self employed person, if you were looking for work or studying, or if you lived in the UK as self sufficient person (“if you exercised your EU Treaty rights under the EEA Regulations 2016”).
The problem with the EEA citizens living in the UK before 31 December 2020 as students or self sufficient persons (persons having sufficient resources not to become a burden on the social assistance system of the UK) is that, in order to be lawfully residents in the UK, they needed to have comprehensive sickness insurance cover in the UK. So, if you were a student or a self sufficient person and you have not been covered by a comprehensive sickness insurance, you were unlawfully resident.
If you were unlawfully resident by being in the UK without leave to enter or remain or without comprehensive sickness insurance, the caseworker may, in some circumstances, waive this requirement and accept your application. You must convince the caseworker that you overstayed in circumstances outside your control (for example, you were a minor, or a victim of domestic abuse, or your late application for limited leave to remain was accepted). Or that you did not comply with the EEA Regulations and had no comprehensive sickness insurance because you have not been aware that you should and for a short period of time.
If you were in breach of the immigration law in any other way, for example by working when you had no such right, you will not fail the residence requirements, but the good character requirement.
If you want to apply for British citizenship or for a British passport and need specialist advice, feel free to contact me. Please note that I am an accredited immigration adviser, not an employee of the UK Visas and Immigration. I charge fees for the advice provided.