Retired EU Nationals. – ( Entry Prior to the UK 1971 )

By Dominic Magne

There exist provisions under Directive 2004/38 for EU nationals who have worked , or, have been self- sufficient, in the UK and since retired to acquire a right to permanent residence , and once obtained, would then be able to apply for naturalisation as a British Citizen.

There may be a cohort of retirees, who need not apply for a Permanent Residence card, but may proceed forthwith to making an application for naturalisation.

Foreign nationals who entered the United Kingdom before 1971, did so under the terms of the 1953 Aliens Order.

Article 4 of the order reads: -

“ 4 (1) Except with the authority of the Secretary of State, an immigration officer shall not grant leave to an alien to land in the United Kingdom unless the alien –

(a) Is in a position to support himself and any dependents ( if any ) in the United Kingdom : and

(b) Where he proposes to enter the employment of a particular employer in the United Kingdom produces a permit in writing for his engagement issued to that employer by the appropriate authority as defined by this Article.”

Under Article 5, dependents would be given leave to enter under the same conditions as the principle applicant.

The practice at that time was that permission to stay would be granted for twelve months, which would then be renewed. The practice would be to grant settlement  after four years. The endorsement would read: " The condition attached to any such leave is hereby cancelled."

Under Section 34 (3) (b ) of the 1971 Immigration Act, those without any conditions  attached to their permission to stay would be considered as having Indefinite Leave to Remain. As such any such person need not apply for a permanent residence card, but may apply for naturalisation immediately.

By guidance published on the 18th December 2020, the Home Office has acknwoledged these  acquired rights. The guidance comments that such applications should be considered in the same way as applications made under the guidance for the Windrush generation. The Windrush guidance ( published on the 1st December 2020 ) requires applicants to prove their admission and continued residence in the United Kingdom. It then counsels discretion in the case worker where he or she may be considering an application dating back many years, where the original documents have been lost.

Care must be taken to show that the person has not left the United Kingdom for a period of two years since 1971, as from that time the notion of settlement lapsing after two years absence was brought into existence by the Immigration rules.

However applicants should not be discouraged, where the documentary proof of their residence is quite slim. The burden lies on the individual to show that they have Indefinite Leave to Remain , and that he or she meets the residence requirements for naturalisation. The burden lies on the Home Office to prove that some one has been absent for a period of two years or more and so lost their the Indefinite Leave to Remain status.

Surbiton 12th July 2018. Updated 11th January 2021

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