EU Nationals of Thirty Four Years Residence or more.

By Dominic Magne

On the 1st January 1973, the United Kingdom joined the European Union. It was not until the 1988 Immigration Act that the implications of free movement were defined in statute.

Under Section 7 of the 1988 Immigration Act, those who are exercising EU Rights do not require permission to enter the United Kingdom. ( See text below.)

Prior to 1988 the Home Office practice was to grant Leave to Remain under the then Immigration Rules pursuant to paragraph 140 of HC 169. A Residence Permit granting a period of Leave to Remain for five years, would lead to a grant of Indefinite Leave to Remain after four years residence . ( Paragraph 144 of HC 169.)

Those EU Nationals who have been resident in the United Kingdom for a period of thirty four years or more, may have been granted Indefinite Leave to Remain and as such need not apply for the new settled status, as they have settled status already.

The challenge they may face would be in proving this entitlement following any departure and return to the United Kingdom following BREXIT.

A number of people who fall in this category may never have applied for naturalisation, either because of a prohibition on dual nationality , or because the enactment of Section  7 of the 1988 Immigration Act rendered such an application unnecessary. They should consider making an application for Naturalisation now.

By guidance published on the 18th December 2020, the Home Office has acknwoledged that EU Nationals prior to 1988 obtained Permission to Remain under the Immigration Rules. The guidance comments that applications for naturalisation 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 the grant of Indefinite Leave to Remain, as this status lapses after two years absence from the United Kingdom.

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.

Updated 11th January 2021

Section 7 of the 1988 Immigration Act reads:

7 Persons exercising Community rights and nationals of member States.

(1)A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable [F1EU] right or of any provision made under section 2(2) of the M1European Communities Act 1972.
(2)The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give leave subject to such conditions as may be imposed by the order.
(3)References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer within the period specified in paragraph 6(1) of Schedule 2 to that Act
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