Acquisition of British citizenship by naturalisation
Section 39: Application requirements: general
145.Section 39 amends the requirements to be met by those applying for naturalisation under section 6(1) of the BNA 1981. By virtue of paragraph 1(1) of Schedule 1 to that Act applicants will still be required to be of good character – a person can be refused on the basis, for example, of a criminal conviction or failure to pay taxes. They will also still be required to have a sufficient knowledge of English, Welsh or Scottish Gaelic, have a sufficient knowledge about life in the UK and, normally, intend to make the UK their home.
146.Section 39(2) replaces paragraph 1(2) of Schedule 1 to the BNA 1981. This sets out six requirements which mostly relate to the applicant’s presence in the UK during the qualifying period. The requirements provide that an applicant:
must have been in the UK at the beginning of the qualifying period;
must not have been absent from the UK for more than 90 days in each year of the qualifying period;
must have had a qualifying immigration status (as defined in new paragraph 2A of Schedule 1 to the BNA 1981 which is inserted by section 39(11)) for the whole of the qualifying period;
on the date of the application for naturalisation, must have either probationary citizenship leave, permanent residence leave, a qualifying CTA entitlement, a Commonwealth right of abode, or a permanent EEA entitlement (as defined in new paragraph 11 of Schedule 1 to the BNA 1981 which is inserted by section 49(3));
who, on the date of the application for naturalisation, has probationary citizenship leave granted for the purpose of taking employment in the UK, has been in continuous employment since the date of the grant of that leave. (“Employment” is defined in paragraph 2(5) of Schedule 1 to the BNA 1981 which is inserted by section 40(10) as including self-employment); and
must not, at any time in the qualifying period, have been in the UK in breach of the immigration laws (as defined in section 50A of the BNA 1981 which is inserted by section 48).
147.Section 39(1) and (3) repeal paragraph 1(3) of Schedule 1 to the BNA 1981 (and the reference to it in paragraph 1(1)). This relates to those in Crown service under the government of the UK. Instead there is a discretion in the new paragraph 2(2) (as inserted by section 39(9)) to waive certain requirements in respect of applicants who have performed exceptional Crown service under the government of the UK.
148.Section 39(4) to (9) amend paragraph 2 of Schedule 1 to the BNA 1981. These amendments relate to the discretion the Secretary of State has in the special circumstances of a particular case to waive various requirements for naturalisation set out in paragraph 1 or to treat them as fulfilled.
149.Section 39(9) inserts new paragraphs 2(2) to (4) in Schedule 1 to the BNA 1981. These provide a new discretion for individual cases involving members of the armed forces or those who have performed exceptional Crown service under the government of the UK. In the special circumstances of a particular case, the Secretary of State can waive some or all of the requirements in paragraph 1(2), which relate to the qualifying period. A definition of “member of the armed forces” is inserted into section 50 of the BNA 1981 by section 49(1). That section already contains a definition of “Crown service under the government of the United Kingdom”.
150.Section 39(11) inserts a new paragraph 2A in Schedule 1 to the BNA 1981. This defines qualifying immigration status for the purposes of paragraph 1(2). Only the following forms of status will count as qualifying immigration status: qualifying temporary residence leave; probationary citizenship leave; permanent residence leave; a qualifying CTA entitlement; a Commonwealth right of abode; or a temporary or permanent EEA entitlement. (All of these terms are defined in paragraph 11 of Schedule 1 to the BNA 1981 which is inserted by section 49(3)).
151.New paragraph 2A(2) provides that an applicant need not have held the same qualifying immigration status for the whole of the qualifying period. For example, an applicant who had been in the UK for the whole of the qualifying period with a combination of temporary residence leave and probationary citizenship leave would be able to count both of those periods towards the requirement to have had qualifying immigration status for the whole of the qualifying period.
Section 40: Application requirements: family members etc.
152.Section 40 amends the requirements to be met by those applying for naturalisation under section 6(2) of the BNA 1981.
153.Section 40(1) and (2) amend section 6 of the BNA 1981. Section 40(1) removes the requirement in section 6(2) that an applicant must be married to, or the civil partner of, a British citizen, and replaces it with a requirement that an applicant must have a relevant family association. Section 40(2) inserts new section 6(3) and (4) which provide that a person (“A”) has a relevant family association if A has a connection of a prescribed description to a person of a prescribed description. “Prescribed” means prescribed by regulations made under section 40 of the BNA 1981 (see section 50(1) of that Act). The regulations may, for example, prescribe that a person has a relevant family association if the person is married to, or the civil partner of, a British citizen or a person with permanent residence leave in the UK. The new section 6(4) provides discretion in individual cases, for the purposes of section 6(3), to treat a person as having a relevant family association on the date of application even though the association ceased to exist before that date.
154.Section 40(3) replaces paragraph 3 of Schedule 1 to the BNA 1981. This sets out the requirements that an applicant needs to meet in order to be naturalised as a British citizen under section 6(2) of that Act. By virtue of the new paragraph 3(1), applicants will still be required to be of good character – a person can be refused on the basis, for example, of a criminal conviction or failure to pay taxes. They will also still be required to have a sufficient knowledge of English, Welsh or Scottish Gaelic, and have a sufficient knowledge about life in the UK. New paragraph 3(2) sets out the requirements relating to the applicant’s presence in the UK during the qualifying period. These are largely the same as for applicants applying under section 6(1) of the BNA 1981, except for the additional requirements that an applicant must have had a relevant family association for the whole of the qualifying period, as well as a qualifying immigration status for the whole of the qualifying period; and that the applicant must have either probationary citizenship leave or permanent residence leave based on a relevant family association, or a qualifying CTA entitlement, or a Commonwealth right of abode, on the date they apply for naturalisation.
155.New paragraphs 3(3) and (4) relate to the applicant’s intentions once naturalised. It is a similar requirement to the one for applicants applying under section 6(1), although it recognises that applicants under section 6(2) may intend to accompany their family member overseas in Crown or other service rather than undertake such service outside the UK themselves.
156.New paragraph 3(5)(a) introduces a new requirement that, where an applicant is applying on the basis of being the partner of a British citizen or someone with permanent residence leave, the applicant must have been the partner of the same person throughout the qualifying period in order to meet the requirement in paragraph 3(2)(c)(i) to have a relevant family association for the whole of the qualifying period. In addition, paragraph 3(5)(b) provides that, where the applicant’s qualifying immigration status is qualifying temporary residence leave, probationary citizenship leave or permanent residence leave, the applicant must have had leave granted on the basis of that partnership (and not granted on the basis of some other relevant family association with the British citizen or permanent resident) in order to meet the requirement in paragraph 3(2)(c)(ii) to have had a qualifying immigration status for the whole of the qualifying period. The additional requirement in paragraph 3(5)(b) does not apply where the applicant’s qualifying immigration status is a qualifying CTA entitlement or a Commonwealth right of abode.
157.New paragraph 3(7) provides that, for the purposes of paragraph 3(5), the relationship between the applicant and the applicant’s partner need not be of the same description throughout the qualifying period. So, an applicant could have started their qualifying period as the unmarried partner of a British citizen, then married that same British citizen, and still meet the requirement to have been the partner of a British citizen throughout the qualifying period.
158.Section 40(4) replaces paragraph 4 of Schedule 1 to the BNA 1981. These amendments relate to the discretion the Secretary of State has in the special circumstances of a particular case to waive various requirements for naturalisation for applicants applying under section 6(2) of the BNA 1981 or to treat them as fulfilled. These are similar to the discretionary powers in paragraph 2(1) for applicants applying under section 6(1), but they also contain a discretion which could be used in the special circumstances of a particular case where a relevant family association has broken down. Section 40(4) maintains the existing power to waive relevant requirements if the applicant is applying on the basis of a relationship with a person in Crown service or other service to which section 2(1)(b) of the BNA 1981 applies who was recruited for that service in the UK.
159.Section 40(5) inserts new paragraph 4A into Schedule 1 to the BNA 1981. This defines qualifying immigration status for the purposes of paragraph 3. This is defined in a similar way as for applicants applying under section 6(1), except that it provides that where the qualifying immigration status is qualifying temporary residence leave, probationary citizenship leave or permanent residence leave, that leave must have been granted on the basis of the applicant having a relevant family association; and the list of qualifying immigration statuses does not include temporary or permanent EEA entitlements.
160.New paragraph 4A(3) provides that an applicant need not have held the same qualifying immigration status for the whole of the qualifying period nor, subject to paragraph 3(5) (that those applying as a partner must have been the same person’s partner and, if necessary, had leave granted on that basis, throughout the qualifying period), need they have had the same relevant family association throughout the qualifying period. New paragraph 4A(4) provides that where an applicant under section 6(2) of the BNA 1981 counts more than one grant of qualifying temporary residence leave, probationary citizenship leave, or permanent residence leave towards the qualifying period, the grants of leave need not (subject to paragraph 3(5)) be based on the same relevant family association. In cases where paragraph 3(5) does apply (because an applicant is applying as the partner of a British citizen or person with permanent residence leave), the grants of leave need not be based on the same description of relationship as partners. This would cover, for example, an applicant who started their qualifying period with qualifying temporary residence leave as the unmarried partner of a British citizen but the applicant then married that partner and completed the qualifying period with probationary citizenship leave granted on the basis of being that person’s spouse. In this case, paragraph 4A(4) allows the applicant to count both periods of leave towards the qualifying period despite the nature of the relationship changing (although the applicant has had leave on the basis of the same partnership throughout).
Section 41: The qualifying period
161.Section 41 sets out the qualifying period for naturalisation as a British citizen.
162.Section 41(1) inserts a new paragraph 4B into Schedule 1 to the BNA 1981. This sets out what the qualifying period will be for naturalisation as a British citizen. The qualifying period is different depending on whether the applicant is applying under section 6(1) or (2) of the BNA 1981. For applicants applying under section 6(1) of the BNA 1981, the default qualifying period is eight years. For applicants applying under section 6(2) of the BNA 1981, the default qualifying period is five years. These periods can be reduced to six years or three years respectively if the applicant meets the activity condition. The activity condition is further defined in paragraph 4B(5).
163.According to paragraph 4B(1) the qualifying period is a period of years ending with the date of the application. This means the qualifying period must be a consecutive period of years. This means that a person cannot aggregate two periods of qualifying immigration status where they are separated by a period where the person did not hold such a status. Not all temporary leave falls under the definition of ‘qualifying temporary residence leave’ as set out in section 49(3) and so will not count towards the qualifying period. This definition is dependant upon the description of types of leave which can result in a grant of probationary citizenship leave which will be set out in the Immigration Rules. It is currently intended that a person who holds temporary residence leave as a worker for 2 years will have qualifying temporary residence leave. However, if that person chooses to become a full-time student (which will not be a form of qualifying temporary residence leave) and then returns to work , it is not possible to count the earlier period of 2 years during which they were working towards the overall qualifying period in a subsequent application for naturalisation. This person would start their qualifying period for naturalisation from the date they resumed working, that is when they hold a qualifying form of temporary residence leave.
164.Subsections (2) to (5) of section 42 amend section 41 of the BNA 1981, which relates to the Secretary of State’s regulation-making powers:
Section 41(2) inserts new regulation-making powers into section 41(1) of the BNA 1981. These enable the Secretary of State to make regulations amending the length of the qualifying period (including the length of time by which it may be decreased for meeting the activity condition), and for determining whether an applicant has met the activity condition (whether because they have carried out relevant activities or because they are deemed to have done so).
Section 41(3) inserts new subsections into section 41 of the BNA 1981 which relate to regulations about the activity condition. Such regulations can provide that meeting the activity condition will have no effect on the qualifying period, by making the qualifying period the same whether an applicant meets this condition or not (new section 41(1B)). The regulations can make provision about prescribed activities in relation to the time before commencement of this section (new section 41(1C)(a)). For example, regulations might provide for activities carried out prior to commencement of this section to count as prescribed activities. And regulations determining whether a person has or is to be treated as having participated in prescribed activities can also enable the Secretary of State to make arrangements for such persons as the Secretary of State thinks appropriate to determine whether, in accordance with the regulations, a person has participated or is to be treated as having participated in an activity (new section 41(1C)(b)). Under this last provision, the Secretary of State could for example enable others to verify that an applicant meets the activity condition.
Section 41(4) and (5) amend section 41 of the BNA 1981 setting out the Parliamentary procedure which applies to the new regulation-making powers.
