Naturalisation as a British citizen

Standard Note: Last updated: Author: Section SN/HA/3232 6 January 2011 Melanie Gower Home Affairs Section

Adults of good character who have sufficient connection to the UK can apply to the Home Office to naturalise as British citizens. They have to meet certain statutory requirements as to their: age and capacity residence in the UK (or Crown service abroad) character language and knowledge of life in the UK future intention to live in the UK (or enter or remain in Crown service etc.) Successful applicants are required to attend citizenship ceremonies. The Home Secretary can refuse citizenship even to someone who meets all the requirements, but she also has a certain amount of discretion to grant it even to those who do not quite fulfil them. The UK Border Agency provides all the necessary forms and guidance on naturalisation, along with recent announcements and information on waiting times for applications, in the British citizenship section of its website. Towards the end of its time in office, the Labour Government announced a new earned citizenship policy, which would have changed migrants entitlements to settle permanently in the UK and the provisions for naturalising as a British citizen. Sections 39 42 of the Borders, Citizenship and Immigration Act 2009 laid the necessary legislative framework for the changes, and were due to come into effect after summer 2011. The Coalition Government has recently confirmed that it will not proceed with the earned citizenship scheme, but it is developing its own proposals for changing the provisions for acquiring permanent settlement and British citizenship.

This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. The website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online adviser finder: www.oisc.org.uk/adviser_finder/adviser_finder.stm. Alternatively, the Immigration Law Practitioners' Association www.ilpa.org.uk may be able to suggest someone with experience in this area from its list of specialist practitioners. The Immigration Advisory Service www.iasuk.org/ provides advice and representation free of charge, and the Community Legal Service website may also be helpful: www.clsdirect.org.uk. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

Contents
1 2 Introduction Requirements for naturalisation 2.1 2.2 2.3 2.4 2.5 2.6 3 4 5 Age and capacity Residence or Crown service Character Knowledge of language and life in the UK Future intention Home Secretarys final discretion 2 2 3 3 7 9 10 11 11 12 12 14

Citizenship ceremonies Challenging a negative decision A forward look: Changes to settlement and naturalisation requirements?

Annex: Labours earned citizenship proposals

Introduction

Many Members get enquiries from non-British constituents about how they can apply for British citizenship, which entitles them to a full British passport. There is a lot of guidance about British nationality and how to apply for it on the UK Border Agency website. This note outlines the current requirements for naturalisation for adults and the extent of the Home Secretarys discretion, and discusses recent and forthcoming changes to these provisions. It does not cover the separate arrangements for children applying for British nationality. More detail on all aspects of British citizenship is given on the UK Border Agency website (which includes current information on costs and waiting times), 1 in its guidance to officials, 2 and in the leading practitioners textbook, Fransmans British Nationality Law, 3 from which this note draws.

Requirements for naturalisation

The statutory requirements for naturalisation applicants are set out in section 6 and Schedule 1 of the British Nationality Act 1981 (BNA) as amended. The BNA came into force on 1 January 1983. The requirements relate to: age and capacity residence (or Crown service) character

1 2 3

See the HBritish citizenshipH section, accessible from the homepage UK Border Agency, HNationality InstructionsH (in particular Volume 1, chapter 18 and its annexes) L Fransman, British Nationality Law, 1998. This book should be used with caution as it is by now out of date in some areas.

knowledge of language and life in the UK future intention Although the statutory requirements are quite particular, the BNA specifies that certain of them can be waived at the discretion of the Home Secretary (or rather, in practice, his officials). 4 The BNA also suggests that any application can be refused at the Home Secretarys discretion even if all the requirements have been met. 2.1 Age and capacity

All applicants for naturalisation must be 18 or over, and of full capacity (i.e. not of unsound mind), 5 on the date of the application. Children under 18 may apply for British citizenship but this is through a different process called registration. 2.2 Residence or Crown service

Applicants not married to a British citizen People who are not married to a British citizen must satisfy either a collection of residence requirements or a Crown service requirement. The residence requirements are that: the applicant was in the UK on the first day of a five-year period ending with the date that his application is received; and during that five-year period, he has not been out of the UK for more than 450 days, and not more than 90 of those days of absence were during the final twelve months; and for the final twelve months the applicant has been without any restriction on the period for which he can remain in the UK; and he has not been in breach of the immigration laws at any time during the five years. 6 There is no requirement to be in the UK on the date of the application. If an applicant is outside the UK then, the only difference is that he would have to submit his application to the nearest British embassy, consulate or high commission, rather than to the UK Border Agency. Some people are treated for nationality purposes as being absent from the UK even when they are physically present here. 7 People who are exempt from immigration control (which includes diplomats and members of the armed forces) 8 fall into this category. However, the Home Secretary has a statutory power to disregard these periods of deemed absence. In particular there is a policy on applications from members of the armed forces under which time spent serving either in the UK or abroad may now count towards the residency requirement. 9 Full details of how this policy is exercised are given in the Home Office
4

5 6 7 8 9

See UK Border Agency Nationality Instructions, HVolume 1, chapter 1H, Levels of decision taking [on 6 January 2011] BNA ss6(1), 6(2) and 50(11) BNA Sch. 1 para. 1 BNA Sch. 1 para. 9(1)(a) Immigration Act 1971 s8(3) and (4) Home Office press notice, New citizenship rights for members of the Commonwealth serving in the British Armed Forces, 23 November 2006

Nationality Instructions. 10 There was a similar policy previously but it applied only to people who had left the armed services at the time of their application, whereas the new policy applies also to those who are still serving (except Gurkhas, to whom special rules apply 11 ). A certain amount of discretion is allowed in the application of certain aspects of the residence requirement 12 (see below). As an alternative to these residence requirements, applicants can rely on Crown service overseas. This neither specifies a minimum period of service nor requires presence in the UK at any particular time. All that the BNA requires in this instance is that, on the date of the application, the applicant is outside the UK in Crown service for the UK government. The working definition of Crown service in this context is that the individual is: established in a permanent position (though a fixed-term posting could suffice); and paid direct from funds voted by parliament; and giving services direct to the state (i.e. the UK government). 13 In practice this refers mainly to members of the British armed forces and diplomatic service serving abroad. In 1980, when the government was consulting on changes to nationality law, it made it clear that the policy was to move away from granting British nationality as a reward to such persons for services rendered:
It is not intended to prescribe any fixed period of service. It is envisaged that grants of Citizenship on these grounds would be made only sparingly. It would not be right, for example, to make them simply on grounds of a period of satisfactory service; citizenship, carrying with it the right of abode in the United Kingdom, is not appropriate as a form of emolument. 14

The Home Office Nationality Instructions give detailed guidance to officials on how to handle applications for naturalisation on the basis of Crown service abroad, under headings which include quality of service, connections with the UK, rank or grade, loyalty and length of service. 15 Applicants married to a British citizen A person applying for naturalisation who is married to a British citizen must either satisfy a slightly less onerous set of residence requirements, or satisfy some of those requirements and have a spouse in Crown or designated service. The residence requirements for spouses are that:

10

11

12

13

14 15

UK Border Agency Nationality Instructions, HVolume 1, chapter 18H Annex B(i), Applications for naturalisation as British citizens made by members/exmembers of the British Armed Forces [on 6 January 2011] See Library standard note HSN/HA/4399 Immigration: settlement and British citizenship for discharged Gurkhas and Commonwealth members of the armed forces BNA Sch. 1 para. 2 and Home Office Nationality Instructions, HVolume 1, chapter 18H Annex B, The Residence Requirements [on 6 January 2011] UK Border Agency Nationality Instructions, HVolume 1, chapter 18H Annex C, The Crown Service requirement - section 6(1) applications, para 1 [on 6 January 2011] White Paper, British Nationality Law: Outline of Proposed Legislation, July 1980, Cmnd 7987, para 69 UK Border Agency Nationality Instructions, HVolume 1, chapter 18H Annex C, The Crown Service requirement - section 6(1) applications [on 6 January 2011]

the applicant was in the UK on the first day of a three-year period ending with the date when the application was received; and during that three-year period he has not been out of the UK for more than 270 days, and not more than 90 of those days of absence were during the final twelve months; and by the date of the application the applicant is without any restriction on the period for which he can remain in the UK; and he has not been in breach of the immigration laws at any time during the three years. 16 The meaning of Crown service is the same as above. Without any time restriction For most applicants the requirement to be without restriction on the time for which the applicant can remain in the UK will be met by having Indefinite Leave to Remain (ILR) here. People living in the UK in the exercise of a European right of free movement or establishment were also, to begin with, considered to be resident without any time restriction. However, between 2 October 2000 17 and 6 April 2006, 18 EEA nationals 19 with a conditional right of residence in the United Kingdom under European Community (EC) law (such as a worker or business person) were not regarded as free of a time limit under the immigration laws, and could not acquire a right of permanent residence under European law. From 2000 to 2006 the only way these EEA nationals could comply with the requirement to be without time restrictions was by applying for Indefinite Leave to Remain (ILR) under the UKs immigration rules once they had been in the UK in the exercise of free movement rights for four years. However, EEA nationals with an unconditional right of residence under EC law (such as retired people or those who are unable to work because of incapacity) were still regarded as free of immigration restrictions. The European Free Movement Directive of 2004 has made an important change to this. 20 As before, those with a conditional right of residence are not considered resident in the United Kingdom without any time restriction and those whose right to remain under European law is unconditional are regarded as resident here without time restrictions. 21 However, the former no longer need to apply for ILR in order to be considered free of any time restriction. Instead, those who have remained in the UK in the exercise of a conditional free movement right for a continuous period of five years now have the right of permanent residence under European law free of any restrictions. This right is acquired automatically, but people who have acquired it may wish to apply to the UK Border Agency for a document confirming their

16 17 18

19

20

21

BNA Sch para 3 when the Immigration (European Economic Area) Regulations 2000, SI 2000/2326, came into force when the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, came into force, reflecting the new European Free Movement Directive, 2004/38/EC EEA nationals means nationals of the European Economic Area which comprises all EU Member States, Iceland, Liechtenstein and Norway. Swiss nationals have similar rights. HDirective 2004/38/ECH, 29 April 2004. See Library Standard Note HSN/HA/4072, Immigration: the Immigration (European Economic Area) Regulations 2006H, 19 June 2006 Immigration (European Economic Area) Regulations 2006, Sch. 2 para. 2

status. 22 There is no fee for such an application. This change came into effect in the UK on 6 April 2006. 23 More information on rights of residence is given in the Home Office Nationality Instructions General Information Section on European Economic Area and Swiss Nationals. 24 Waivable residence requirements The Secretary of State has statutory powers, specified in the BNA, to waive some of the residence requirements if in the special circumstances of any case she thinks fit for example, if the applicant has been: out of the country for longer than the permitted number of days; free of a time restriction on his stay for less than twelve months; resident in breach of the immigration laws; or deemed technically absent from the UK. 25 Residence requirements he may not waive are: actual physical presence in the UK on the first day of the five- (or three-) year period ending with the date of the application; and being under a time restriction under the immigration laws at the date of the application. The BNA itself gives no clues about how the discretion to waive may be exercised. However, the Home Office Nationality Instructions give extensive information. 26 For instance, they say that: excess absences of up to 30 days beyond the statutory limit for the five- (three-) year period are normally disregarded; absences of up to double the statutory limit may be disregarded if the application is otherwise in order and the applicant has established their home, family and a substantial part of their estate here; and it would be extremely rare for absences of more than double the statutory limit to be waived. 27 Similar considerations apply to excess absences in the final year. 28 The guidance even states that if a person misses the unwaivable requirement to have been in the UK on the date five (three) years before the application by two months or less either
22

23 24

25 26

27

28

see UK Border Agency HEuropean Casework InstructionsH chapter 6, Permanent Residence, and also the guidance in the website section HFor European citizensH [on 6 January 2011] Immigration (European Economic Area) Regulations 2006, SI 2006/1003 UK Border Agency Nationality Instructions, HVolume 2, section 2H European Economic Area and Swiss Nationals [on 6 January 2011] BNA Sch. 1 paras 2 and 4 UK Border Agency Nationality Instructions HVolume 1, chapter 18H Annex B, The Residence Requirements [on 6 January 2011] UK Border Agency Nationality Instructions HVolume 1, chapter 18H Annex B, The Residence Requirements para 4 [on 6 January 2011] Ibid, para 5

way, the Home Office may offer re-declaration in other words the application may be resubmitted with a new application date without having to pay another fee. 29 2.3 Character

Schedule 1 BNA states simply that naturalisation applicants must be of good character. Since 4 December 2006, not only adults but also most applicants aged 10 and over are subject to the statutory requirement to be of good character. The exceptions are: British overseas citizens; British protected persons; British subjects who do not hold another citizenship and who apply to register as British citizens under section 4B of the BNA; and Stateless people applying under Schedule 2 to the BNA This is clearly a largely subjective test - there is no statutory definition of good character. The Home Office website explains that:
We consider you to be of good character if you show respect for the rights and freedom of the United Kingdom, have observed its laws and fulfilled your duties and obligations as a resident. We will check with the police and may contact other government departments as part of our character check. By signing the application form you are giving your consent for us to contact these organisations to obtain information about you. 30

On 5 December 2007 the then Home Secretary announced changes to the way that an applicant's good character will be assessed for the purposes of naturalisation and registration as a British citizen. 31 Applications made on and after 1 January 2008 will normally be refused if the applicant has been convicted of a criminal offence and the conviction has not yet become 'spent' in accordance with the provisions of the Rehabilitation of Offenders Act 1974. The Home Office Nationality Instructions set out the kind of matters that might be taken into account in assessing character:
THE GOOD CHARACTER REQUIREMENT 1. Introduction 1.1 There is no definition of Good Character in the British Nationality Act 1981 and therefore no statutory guidance as to how this requirement should be interpreted or applied. However, nationality law makes clear that the Good Character test is to be applied to all persons over the age of ten who apply for naturalisation or registration as a British citizen, except: a. Where an application is made under statelessness provisions in Schedule 2 of the British Nationality Act 1981 (the Act), or;
29 30 31

Ibid, para 3 UK Border Agency website, HBritish citizenship/Eligibility/Good character requirementH [on 6 January 2011] Home Office press notice, Home Secretary today sets out plans to manage migration and protect British values, 5 December 2007

b. Where an application is made under section 4B of the Act from an eligible applicant 1.2 The Secretary of State must be satisfied that the applicant is of good character on the balance of probabilities. To facilitate this, applicants must answer in full all questions asked of them on the application form for naturalisation or registration as a British citizen to inform the assessment of good character. They must also inform Nationality Group of any significant event (e.g. such as a criminal conviction) that could have a bearing on the good character assessment. 2. Aspects of the requirement 2.1 Caseworkers should not normally consider applicants to be of good character if, for example, there is information to suggest: a. They have not respected, and/or are not prepared to abide by the law (e.g. they have been convicted of a crime or there are reasonable grounds to suspect (i.e. it is more likely than not) they have been involved in crime); or b. There is adequate information (i.e. it is more likely than not) to suggest that they have been involved previously in war crimes, terrorist related activities or other actions that are considered not to be conducive to the public good. c. Their financial affairs were not in appropriate order (e.g. failure to pay taxes for which they were liable); or

d. Their activities were notorious and cast serious doubt on their standing in the local community; or e. They had practiced deceit in their dealings with the UK Government; or f. They have assisted in the evasion of immigration control; or

g. They have previously been deprived and are seeking to re-acquire citizenship within a prescribed period. 2.2 Caseworkers should normally accept that an applicant is of good character if: a. Enquiries of other government departments and agencies do not show fraud/deception has been perpetrated by the applicant in their dealings with them; b. There are no unspent convictions; c. There is no information to cast serious doubts on the applicant's character; and

d. Where the applicant is a businessperson or is self-employed or a person of independent means or a sole representative - there is written confirmation from HM Revenue and Customs that their business affairs are in order. 2.3 If the application does not clearly fall into one of the categories outlined in paragraph 2.1 but there are doubts about the applicant's character, then caseworkers may request an interview in order to confirm their final assessment of the applicants 32 character.
32

UK Border Agency Nationality InstructionsH, Volume 1, chapter 18H Annex D [on 6 January 2011]

The guidance goes on to give more detail about what will be considered relevant under these headings. 2.4 Knowledge of language and life in the UK

Applicants for naturalisation as a British citizen have to demonstrate that they can meet the requirement to have sufficient knowledge of English and knowledge of life in the United Kingdom. 33 Since 1 November 2005 they have been able to do so through either of the following routes: by passing a Life in the UK test (this is the route taken by those who are already proficient in English) or by taking an English for Speakers of Other Languages (ESOL) course (or the Scottish equivalent) which includes citizenship materials, and moving up from one ESOL level to the next (this is the route taken by those who do not already have sufficient knowledge of English to enable them to study for and pass the life in the UK test). 34 The BNA has always required applicants for British nationality to have sufficient knowledge of English, Welsh or Scottish Gaelic. 35 Non-statutory guidance stated that the applicant did not have to speak the language fluently, just well enough to cope with everyday situations. The language requirement did not initially apply to those seeking naturalisation on the basis of their marriage to a British citizen. However, the Nationality, Immigration and Asylum Act 2002 made two major changes to the language requirements for naturalisation. Section 1 includes a provision giving the Secretary of State new powers to make regulations for determining whether a person meets the language proficiency requirements, and section 2 extends the language condition to the spouses of British citizens. The relevant part of section 1 came into force on 6 July 2004 36 and regulations were duly made on 7 July 2004. 37 These regulations came into force on 28 July 2004 38 and set the standard in English which must now be achieved by applicants for naturalisation in order to meet the English (but not Welsh or Scottish Gaelic) language proficiency requirements of the 1981 Act. Broadly speaking, at this level people are able to follow straightforward spoken explanations and hold a conversation on a familiar topic. Section 1 of the Nationality, Immigration and Asylum Act 2002 also introduced a new requirement that naturalisation applicants must have sufficient knowledge about life in the United Kingdom. Before bringing this new requirement into force, an Advisory Group on Life in the UK, chaired by Professor Sir Bernard Crick, was appointed to advise on language and citizenship education for prospective British citizens. The group published its final report

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34

35 36 37 38

Home Office press release, HBecoming a UK Citizen - New Requirements IntroducedH, 31 October 2005. After this date, the certification of a designated person (such as a notary public) or the presentation of certificates deemed to show English as equivalent to ESOL entry level 3 has no longer been accepted to demonstrate that the applicant can meet the language requirement. British Nationality (General) Regulations 2003 SI 2003/548 as amended. See also the guidance for applicants on the UK Border Agency website HBritish citizenship/Applying/Application types/Naturalisation/Life in the UKH [on 6 January 2011] Schedule 1 para 1(1)(c) as originally enacted SI 2004/1707, art 2 The British Nationality (General) (Amendment) Regulations 2004, SI 2004/1726 Amended by the British Nationality (General) (Amendment No. 2) Regulations 2004, SI 2004/2109 on 1 September 2004 and by the British Nationality (General) (Amendment) Regulations 2005, SI 2005/2785 (which repeal both the 2004 Regulations) on 1 November 2005

in September 2003, 39 and made a number of recommendations on how to take these provisions forward in practice. Section 2 of the 2002 Act also came into force on 28 July 2004. 40 As a result, from this date the spouses of British citizens who apply for naturalisation have had to meet the same requirements for knowledge of language and life in the UK as all other applicants. Knowledge of English and life in the UK became a requirement for ILR applications in April 2007. Applicants who have already demonstrated sufficient knowledge of English and life in the UK as part of their application for ILR are not required to do a further test when applying for naturalisation as a British citizen. The Home Office Nationality Instructions provide further information about the application of the language and citizenship requirements. 41 2.5 Future intention

An applicant who is not married to a British citizen must satisfy the Secretary of State that: either his intentions are that, if he is naturalised, his home or his principal home will be in the UK or he intends, if naturalised, to enter into or continue in Crown service for the UK government, service with an international organisation of which the UK is a member, or service with a company or association established in the UK. 42 Fransmans British Nationality Law suggests that
In practice the problems that arise usually concern applicants who leave the UK after submitting their applications but insist they are doing so temporarily only. [] The Home Office view appears to be that an applicant who leaves the UK may nevertheless satisfy the future residence requirement if he states he will be away for up to about six months only and if the objective circumstances support this intention. A greater absence than this and/or lack of supporting circumstances may well lead to refusal. The objective circumstances to be taken into account include: whether there is a definite date for the resumption of residence in the UK; whether in the meanwhile connections with the UK are being maintained (eg a residence here, assets, family members); length of residence in excess of the [five or three] years minimum; the applicants career plans or commitments following the intended return to the UK, etc, but it is no longer policy to refuse an application on future residence grounds solely 43 because the applicants spouse is living abroad.

39

Home Office, The New and the Old: Report of the "Life in the United Kingdom" Advisory Group, September

40 41 42 43

2003
SI 2004/1707, art 3 UK Border Agency Nationality Instructions HVolume 1, chapter. 18H Annex E [on 6 January 2011] BNA Sch. 1 para 1(1)(d) L Fransman, British Nationality Law, 1998 para 14.8

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An applicant who is married to a British citizen does not have to meet the future intentions test. 2.6 Home Secretarys final discretion

Section 6 of the BNA comprises a two-stage decision-making process for naturalisation applications. First the Secretary of State must be satisfied that the applicant meets the requirements of section 6 and Schedule 1 of the BNA, as set out above. If she is satisfied about this, she must then consider whether she thinks fit that the applicant be naturalised. The then Governments position was explained in the Standing Committee debates on the Bill which became the BNA:
The essence of the Governments case is that all the relevant factors should be taken into consideration before a decision to grant or refuse an application for naturalisation is taken. This means having subjective tests of good character and future intentions, such as are set out in Sch 1. and also that. At the end of the day, the Home Secretary must be able to make up his mind on the basis of the whole picture. The preliminary requirements of Sch 1 are a crucial part of the process but they may not always lead to 44 the emergence of the whole story.

However, Fransmans British Nationality Law suggests that the second stage of the process is perhaps in practice subsumed by the broadness of discretion available under the future intention and good character requirements:
The future intention and good character requirements of the Schedule are so broad and engage the Secretary of States discretion to such a degree that it is difficult to ascertain whether the general s 6 discretion, comprising the second stage of the decision-making process, is any longer exercised separately in a significant way. 45

Any exercise of discretion must be without regard to the race, colour or religion of the applicant for naturalisation. 46

Citizenship ceremonies

Everyone who applies for naturalisation after 1 January 2004 and is successful has been required to attend a citizenship ceremony in their local community before they will be recognised as a British citizen. This new requirement was brought in by Schedule 1 to the Nationality, Immigration and Asylum Act 2002, which substituted a new section 42 and Schedule 5 of the BNA on citizenship ceremonies, oaths and pledges. These provisions are supplemented by more detailed regulations, 47 and the fees for naturalisation applications have been increased to cover the cost of the ceremonies. The old oath of allegiance has been renamed the citizenship oath, and a new citizenship pledge has been introduced alongside it. Any adult who wishes to be naturalised or registered as a British citizen must make a citizenship oath (or non-religious affirmation) and citizenship pledge at a citizenship ceremony. As soon as he has done so, he will be given a certificate of naturalisation, meaning that he is recognised as a British citizen (as long as he has paid the appropriate fee).

44 45 46 47

SC Deb (F), May 1981, cc695-6 L Fransman, British Nationality Law, 1998, para 14.2 British Nationality Act 1981 s44(1) The British Nationality (General) (Amendment) Regulations 2003 SI 2003/3158

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The Secretary of State has the discretion in special circumstances to waive the requirements for the oath, pledge and ceremony. The UK Border Agency website includes a page giving applicants detailed information about citizenship ceremonies. 48 Some more background information about the introduction of citizenship ceremonies, and an outline of their form and content, is given in another Library standard note, SN/HA/2965 Citizenship ceremonies.

Challenging a negative decision

It used to be the case that the Home Office was not obliged to give reasons for refusing an application for naturalisation, and refusal decisions could not be appealed or judicially reviewed (section 44(2) and (3), BNA). In the past, applicants would usually be told if their applications had failed because of a technicality: for example, a failure to meet the residence requirements, or an assessment that the applicants language skills were inadequate. If, on the other hand, they failed the good character test, reasons were not normally given. However, the Fayed brothers, who were refused British citizenship without explanation, successfully challenged this in the Court of Appeal. The Court held that the Home Office must at least indicate the nature of its concerns before making a negative decision, in order to allow the applicant to address them. 49 In December 1997, the Home Secretary announced that the case would be conceded and that, in principle, reasons for refusal of citizenship would in future be given. This had the effect of opening up nationality decisions to greater scrutiny and the possibility of more effective challenge. The Nationality, Immigration and Asylum Act 2002 then repealed those parts of the 1981 Act which had prevented the Home Office from being required to give reasons for nationality decisions and which protected those decisions from being challenged in the courts. Section 7 of the 2002 Act provides that:
(1) Section 44(2) and (3) of the British Nationality Act 1981 (c. 61) (no requirement to give reasons for discretionary decision, and no right of appeal) shall cease to have effect.

Those refused citizenship may be able to secure leave to apply for judicial review of the decision, but there are still no procedures for appeal in cases where applicants are refused citizenship. Anyone who is considering making an application for judicial review should consult a solicitor or a reputable immigration adviser.

5 A forward look: Changes to settlement and naturalisation requirements?

Towards the end of its time in office, the Labour Government developed a new policy for earned citizenship. This would have changed migrants rights to settle permanently in the UK and changed the process and requirements for naturalising as a British citizen (see Annex for a summary of the proposed measures). Sections 39 41 of the Borders, Citizenship and Immigration Act 2009 made changes to the conditions set out in the BNA for naturalisation as a British citizen, in order to reflect the
48 49

UK Border Agency website, HBritish citizenship/Applying/Citizenship ceremoniesH [on 6 January 2011] R. v Secretary of State for the Home Department ex parte Fayed [1997] 1 All ER 228, CA

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earned citizenship proposals. These provisions were not due to be commenced before summer 2011. However, in November 2010 the Home Secretary confirmed that the Coalition Government will not proceed with the earned citizenship measures, which it criticised as being too complicated, bureaucratic and, in the end, ineffective. 50 Therefore, for the time being, the eligibility criteria and processes for applying for Indefinite Leave to Remain or naturalisation as a British citizen remain unchanged. However, the Coalition Government has stated that it is currently too easy to progress from temporary residence in the UK to permanent settlement, and has indicated that it is developing its own proposals for reform which will be announced in due course.

50

UKBA update, HGovernment announcement on settlement reformsH, 5 November 2010

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Annex: Labours earned citizenship proposals

1.1 Earned citizenship and the new path to citizenship The Labour Government began to consult on changes to the path to citizenship and provisions for naturalising as a British citizen in 2008. It wanted to encourage more migrants to naturalise as British citizens rather than simply to remain in the UK with settled status. 51 Under its plans, eligibility to settle permanently in the UK or to naturalise as a British citizen was to be restricted to three categories of migrant skilled economic migrants, refugees and family members of persons present and settled in the UK. Instead of the existing ILR (Indefinite Leave to Remain) status, the term permanent residence would be used for migrants who had no time limit on their right to live in the UK but who had not naturalised as British citizens. Permanent residence was to become an alternative to naturalising as a British citizen, rather than a status that migrants must acquire before applying for British citizenship. Migrants would be required to earn their permanent residence/British citizenship, by meeting specific requirements at each stage of the path from temporary to permanent residence. The background to these changes is discussed in detail in Library research papers 09/47 Borders, Citizenship and Immigration Bill [HL] and 09/65 Borders, Citizenship and Immigration Bill [HL]: Committee Stage Report. Many of the details were to be set out in future secondary legislation and guidance. However, the UKBA produced some illustrative diagrams of how the new path to citizenship would work. 52 These can be summarised as: Stage 1: Temporary residence - five years for workers and refugees, two years for persons who enter as family members. Only certain categories of temporary residence would count as a qualifying residence (i.e. give a person a route to naturalisation or permanent residence). Persons who entered the UK as a worker under Tier 1 or Tier 2 of the points-based system would fall under the work category, persons who had temporary residence as a family member of a British citizen or person settled in the UK would be in the family category, and refugees and persons with humanitarian protection would be covered by the protection category. Persons with other types of temporary residence, such as students, unskilled workers and visitors, would not be able to progress beyond temporary residence. In order to progress to Stage 2 (probationary citizenship), eligible individuals would have had to satisfy certain other requirements (depending on which citizenship route they fell under) and meet knowledge of English language requirements. Stage 2: Probationary citizenship - a further form of temporary leave after Stage 1. Probationary citizenship would have lasted for a minimum of one year for persons who wished to naturalise as British citizens, if they chose to participate in an Active Citizenship activity (discussed below). It would have lasted for a minimum of three years if they did not meet the active citizenship condition. Persons who wished to
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52

UK Border Agency, HThe Path to Citizenship: Next steps in reforming the immigration systemH, February 2008 See, for example, UK Border Agency, HEarning the Right to Stay: A new points test for citizenshipH, 3 August 2009, p.13 and p.33-34

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acquire permanent residence status rather than British citizenship would have had to spend at least three years as probationary citizens (possibly longer in some cases, such as those involving some criminality). It was intended that a person would not be able to spend longer than five years with probationary citizenship status, 53 although there was some potential for discretion. 54 Individuals with probationary citizenship would have had to meet specified requirements in order to qualify for British citizenship or permanent residence, such as remaining in employment or a subsisting family relationship (depending on which route they were in). Stage 3: British citizenship or permanent residence (for persons unwilling or unable to naturalise as a British citizen, including those whose other nationality does not allow dual citizenship). Persons on the work and family routes would have had restricted access to public funds and services until they had naturalised as a British citizen or obtained permanent residence status. The Labour Government considered that Active Citizenship would have encouraged migrants to engage with the wider community and demonstrate to British citizens that migrants were earning their right to stay in the UK. 55 It was anticipated that various types of voluntary work or community involvement would count as an Active Citizenship activity. Detailed guidance on how this requirement was to be applied was not published in advance of the 2010 General Election. 56 A points test for citizenship During passage of what became the Borders, Citizenship and Immigration Act 2009, the Labour Government announced a further proposal: a points test for migrants who wish to settle in the UK permanently. 57 Further details of how such a test might work were provided in the August 2009 consultation document Earning the Right to Stay: A new points test for citizenship. 58 The consultation paper stated that stronger mechanisms to control who is allowed into the UK on a permanent or temporary basis were needed so that the Government could manage population growth. 59 It argued that a points test for citizenship would deliver the benefit of
breaking the automatic link between coming to the UK to work and gaining the right to remain permanently, by giving the Government the ability to take a clear, enforceable decision about who should be allowed to stay early on in the process. 60

The consultation paper suggested that a points test for citizenship would be most appropriate at the point of entry to the probationary citizenship stage. 61 Migrant workers could be
53

54 55

56

57 58 59 60

UK Border Agency, The Path to Citizenship: Next steps in reforming the immigration system, February 2008 Figure 2, p.31 HHC Deb 14 July 2009 c231-2 UK Border Agency, The Path to Citizenship: Next steps in reforming the immigration system, February 2008 p.29-30 The Government has set out some further ideas in Earning the Right to Stay: A new points test for British citizenship, 3 August 2009 HHC Deb 2 June 2009 c175-6 UK Border Agency, Earning the Right to Stay: A new points test for citizenship, 3 August 2009 UK Border Agency, Earning the Right to Stay: A new points test for citizenship, 3 August 2009 p.6 Ibid, p.14-15

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awarded points for a range of attributes including earning potential; qualifications gained in the UK; special artistic, scientific or literary merit; English language skills; and having spent time living in a part of the UK in need of further immigration (such as Scotland). Under the proposals, points would not be awarded for engaging in an Active Citizenship activity. The Government would be free to raise or lower the level of points required in order to be eligible for British citizenship, depending on the interests of the UK at the time. A more limited points test was envisaged for migrants who came to the UK as refugees or as family members of persons settled in the UK. Certain actions, including criminal or anti-social behaviour, and a failure to integrate into the British way of life could result in a deduction of points, or some other penalty. 62 A points test would be applied in addition to the other requirements which would have to be met in the future in order to progress to probationary citizen stage (such as knowledge of English and life in the UK). 63 1.2 Sections 39 41 of the Borders, Citizenship and Immigration Act 2009 Sections 39 41 of the Borders, Citizenship and Immigration Act 2009 made changes to the conditions set out in the BNA for naturalisation as a British citizen, in order to reflect the earned citizenship proposals. Section 58(2) of the Act provides for the provisions to be commenced by order of the Secretary of State. At the Commons Report stage of the Bill (as then was), Phil Woolas, then Minister for Immigration, gave a commitment that the earned citizenship sections would not commence before July 2011. 64 Section 39 contains the changes which would affect applicants who had followed the work or protection routes to naturalisation/permanent residence. The good character, knowledge of language and life in the UK, and future intentions requirements would remain the same as the existing provisions. However the residence requirements would change. The applicant would have to: be in the UK at the beginning of the qualifying period; and not have been absent from the UK for over 90 days in each year of the qualifying period; and have had a qualifying status for the whole of the qualifying period (i.e. one of the types of leave which provides a route to citizenship); and have probationary citizenship leave, permanent residence leave, a qualifying CTA entitlement, a Commonwealth right of abode or a permanent EEA entitlement on the date of applying for naturalisation; and have been in continuous employment, if they acquired probationary citizenship on the basis of working in the UK, since such leave was granted; and not have been in the UK in breach of the immigration laws at any time during the qualifying period.
61 62 63 64

Ibid, p.14 Ibid, p.17 Ibid, p.18 HHC Deb 14 July 2009 c232

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Apart from the requirement to have been in the UK at the beginning of the qualifying period, the Secretary of State would have the discretion to waive these requirements in the special circumstances of any particular case. The provision which provided an alternative to the residence requirement for persons in Crown Service outside the UK has also been amended. Under the amended provisions, the Secretary of State would have a discretionary power to waive the requirements in s1(2) BNA for armed forces or exceptional Crown Services cases. Section 40 sets out changes to the naturalisation provisions which apply to spouses and civil partners of British citizens. The changes introduced by the 2009 Act remove the reference to spouses and civil partners and instead state that a person who has a relevant family association to a person of prescribed description can naturalise as a British citizen under section 6(2) of the BNA (subject to the other requirements). The definition of relevant family association is to be provided by regulations, which have not yet been issued. The then Government indicated that the provisions were likely to include spouses, unmarried or samesex partners of British citizens or permanent residents; bereaved spouses/partners of British citizens or permanent residents; victims of domestic violence of British citizens and permanent residence; and persons exercising access rights to a child resident in the UK. 65 Persons applying for naturalisation as a family member would have to meet good character, knowledge of English language and life in the UK requirements, as well as similar residence requirements as those for persons who have followed the work or protection routes. They would also have to satisfy a future intentions requirement. Again, the Secretary of State has powers of discretion to treat applicants as meeting these requirements (apart from to have been in the UK at the beginning of the qualifying period) even if they did not. Section 41 specifies the qualifying periods for naturalisation under the earned citizenship process. Persons who followed the work or protection routes to naturalisation would be able to apply for naturalisation after 8 years in the UK with a qualifying immigration status if they did not meet the Active Citizenship requirements, or 6 years if they do. The respective timescales for persons who followed the family route would be 5 years and 3 years. 1.3 Transitional arrangements Phil Woolas confirmed during debate at Commons Report stage that transitional arrangements would be applied for persons who were already close to acquiring ILR or British citizenship at the time of commencement of sections 39 - 41. People who had already applied for naturalisation as a British citizen would have their application considered under the current provisions. People who had ILR, or an application for ILR under consideration on the date of commencement, and who applied for naturalisation before the provisions were commenced, or within 24 months of the date of commencement (i.e. until July 2013), would also have their application for British citizenship considered under the existing provisions rather than the new earned citizenship requirements. 66 These transitional arrangements were reflected in section 58 of the 2009 Act.

65

66

Lord Brett, letter to Lord Avebury and others regarding Borders, Citizenship and Immigration Bill Committee Day 2 Clauses 37 and 38, 19 March 2009 HDEP 2009-0890 HHC Deb 14 July 2009 c244

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