Part 2: Citizenship
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.
Acquisition of British citizenship by birth
Section 42: Children born in UK etc. to members of the armed forces
165.Section 42 amends section 1 of the BNA 1981 to provide that a child born in the UK or a qualifying territory (as defined in section 50(1) of that Act) on or after the commencement of the section will automatically become a British citizen if their father or mother is a member of the armed forces at the time of their birth. Where that is not the case when the child is born but a parent subsequently becomes a member of the armed forces while the child is still a minor, the child is entitled to be registered as a British citizen. There is also a requirement that the Secretary of State must be satisfied that the applicant is of good character – see section 41A(1) of the BNA 1981 (which is inserted by section 47).
Acquisition of British citizenship etc. by registration
Section 43: Minors
166.Section 43 amends section 3(2) of the BNA 1981 to remove the requirement that an application for the registration of a child under that subsection must be made within twelve months of the child’s birth. This will enable an application to be made at any time before the child’s 18th birthday.
167.Section 43(3) removes section 3(4) of the BNA 1981, which gave the Secretary of State discretion to extend the 12 month period to six years after the child’s birth, as this is no longer necessary.
168.There is also a requirement that the Secretary of State must be satisfied that the applicant is of good character – see section 41A(1) of the BNA 1981 (which is inserted by section 47).
Section 44: British Nationals (Overseas) without other citizenship
169.Section 44 amends section 4B of the BNA 1981. This adds British Nationals (Overseas) to those who are eligible to apply for registration under this section, which currently includes British Overseas citizens, British subjects and British protected persons. The amendment will allow British Nationals (Overseas) to be registered as British citizens if they do not hold any other citizenship or nationality, and have not done anything to effect the loss of another citizenship or nationality since 19 March 2009 (which is the date this change was announced).
170.Section 44(3) and (4) replace the current requirement that a person should not have lost any other citizenship or nationality after 4 July 2002, as a result of renunciation, voluntarily relinquishment, action or inaction. This is replaced with a requirement not to have done so after the “relevant day”. For British Nationals (Overseas) the “relevant day” will be 19 March 2009, for the other types of nationals covered by section 4B it will remain as 4 July 2002. These dates correspond with the dates the relevant changes were announced.
Section 45: Descent through the female line
171.Section 45 amends section 4C of the BNA 1981 to allow applicants born before 7 February 1961 to be able to register as British citizens, provided they meet the other requirements in section 4C. The amendments made by the section also widen the scope of section 4C so that it is no longer restricted to the case where the applicant would otherwise have become a CUKC under section 5 of the BNA 1948.
172.Section 4C, as inserted by section 13 of the NIAA 2002, conferred an entitlement to registration as a British citizen on persons born between 7 February 1961 and 1 January 1983 who, but for the inability (at that time) of women to pass on their citizenship, would have acquired British citizenship automatically when the BNA 1981 came into force.
173.Section 45(2) removes the 7 February 1961 cut-off point from section 4C, so that persons born before that date can apply for registration as British citizens. The requirement that the applicant must have been born before 1 January 1983 is, however, retained since sections 1(1) and 2(1) of the BNA 1981 already provide for persons born after this date to acquire citizenship by descent from their mother or father.
174.Section 45(3) inserts into section 4C of the BNA 1981 new subsections (3) to (3D). Those subsections examine whether the applicant would have become a CUKC under various provisions of the BNA 1948 if certain assumptions had been applied. Under those assumptions certain provisions are read as if they provided for citizenship to pass by descent from the applicant’s mother in the same terms as they provided for descent from the applicant’s father. The references to the applicant’s mother limit the extent of the section; an applicant must show that his or her mother had the relevant type of status (which she would have been able to transmit had the law permitted descent from mothers in the same way as fathers).
175.Subsections (3) to (3C) cover both cases where certain provisions of the BNA 1948 provided expressly for descent from a father only (see assumption A in subsection (3A)) and those cases where certain provisions of the BNA 1948 enabled an applicant to become a CUKC if the applicant had a particular nationality status immediately before commencement of the BNA 1948 and a provision of legislation prior to the BNA 1948 prevented the applicant from acquiring that status by descent from his or her mother in the same terms as it provided for descent from the applicant’s father (see assumption B in subsection (3B)).
176.Subsection (3C) clarifies that assumption B only applies to cases of automatic acquisition of citizenship, and not to provisions where the applicant’s acquisition of the nationality status depended upon an application for registration as such.
177.Subsection (3D) provides that, for the purposes of determining whether the applicant would have become a CUKC, it should not be assumed that any registration or other requirements were met, if in fact they were not. For example if, applying the assumptions, the applicant would have become a CUKC had the applicant’s birth been registered at a particular time - and it was not in fact so registered - it should not be assumed that the birth would have been registered had the assumptions applied at the relevant time.
178.Subsection (4) inserts a new subsection (5) into section 4C. For the purposes of interpreting section 5 of the BNA 1948 when applying section 4C of the BNA 1981, where a female person (that is, the applicant’s mother) became a CUKC under the provisions listed in subsection (5)(a) to (d), she should be deemed to be a CUKC by descent only (and not a CUKC otherwise than by descent). This replicates the existing position for a male person (that is, the applicant’s father) who becomes a CUKC under those same provisions.
Section 46: Children born outside UK etc. to members of the armed forces
179.Section 46 inserts new section 4D into the BNA 1981, which provides an entitlement to registration as a British citizen for children born outside the UK and qualifying territories on or after the commencement of the section to a father or mother who is a member of the armed forces who is serving outside the UK and the qualifying territories.
180.According to section 4D(3), if the applicant (“P”) is a minor on the date of application, P’s father and mother must both consent to P’s registration as a British citizen. Subsection (4) provides that, where one of P’s parents dies on or before the date of application, either parent can consent to P’s registration. Subsection (5) gives the Secretary of State discretion to waive the requirement for consent.
181.There is also a requirement that the Secretary of State must be satisfied that the applicant is of good character – see section 41A(1) of the BNA 1981 (which is inserted by section 47).
182.An applicant is not expressly excluded from the entitlement to register if, at the time of P’s birth, P’s father or mother is a British citizen serving in the armed forces outside the UK and qualifying territories, who was recruited in the UK or a qualifying territory. But, in that case, P will automatically become a British citizen by virtue of section 2(1)(b) of the BNA 1981, and will not need to apply for registration under section 4D.
Section 47: Good character requirement
183.Section 47 moves the existing requirement in section 58 of the IANA 2006 for adults or young persons applying for registration as a British citizen, a British overseas territories citizen, a British Overseas citizen or as a British subject to be of “good character” into the various different Acts which contain the relevant registration routes. The underlying requirement to be “of good character” remains unchanged.
184.Thus, subsection (1) creates a new section 41A in the BNA 1981, for registration routes contained in that Act. Subsection (2) inserts the requirement into section 1 of the Hong Kong (War Wives and Widows) Act 1996, and subsection (3) inserts the requirement into section 1 of the British Nationality (Hong Kong) Act 1997.
185.Subsections (4) and (5) make consequential changes to the existing powers to supply the Secretary of State with information relevant to the good character requirement in section 131 of the NIAA 2002 and section 40 of the UKBA 2007.
Interpretation
Section 48: Meaning of references to being in breach of immigration laws
186.Section 48 inserts a new section 50A into the BNA 1981, the effect of which is to move the definition of being “in breach of the immigration laws” from section 11 of the NIAA 2002 to the BNA 1981. At the same time, section 48 replaces the references in section 11(2)(d) and (e) to being a qualified person (or family member of such a person) within the meaning of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) (now repealed) with a reference to having an entitlement to reside by virtue of any provision made under section 2(2) of the European Communities Act 1972. Section 48 also adds a new limb to the list of persons who are not considered to be in breach of the immigration laws to cover those with a qualifying CTA entitlement. New section 50A(5) defines when a person is considered to have a qualifying CTA entitlement for these purposes.
187.New section 50A(2) and (3) provide that the revised definition shall apply to the sections of the BNA 1981 listed in subsection (2) after the section is commenced. In relation to persons born before commencement, or specified applications made before commencement but not decided until after commencement, section 48(3) provides that section 11 of the NIAA 2002 shall continue to apply.
188.Furthermore section 48(3)(d) and (4) provide that for the purposes of determining whether a person was in breach of the immigration laws prior to 7 November 2002, section 11 of the NIAA 2002 (including the provision in section 11(4)) shall continue to apply instead of the new section 50A.
189.Section 48(6) makes a consequential amendment to Schedule 3 to the NIAA 2002, replacing the reference to section 11 of that Act with a reference to new section 50A of the BNA 1981.
Section 49: Other interpretation etc.
190.Section 49 amends section 50 of, and Schedule 1 to, the BNA 1981 to introduce various definitions which are relevant to the amendments made to that Act by this Part.
191.Section 49(1) inserts into section 50 of the BNA 1981 a definition of “member of the armed forces”. This will affect those who apply for naturalisation as a British citizen under section 6(1) of the BNA 1981, as well as new section 1(1A) and (3A) of the BNA 1981 (for children born in the UK to a member of the armed forces) and new section 4D of the BNA 1981 (for children born outside the UK to a member of the armed forces).
192.Section 49(3) inserts new paragraph 11 into Schedule 1 to the BNA 1981. This defines qualifying temporary residence leave; probationary citizenship leave; permanent residence leave; a qualifying CTA entitlement; a Commonwealth right of abode; a permanent EEA entitlement and a temporary EEA entitlement for the purposes of being able to apply for a certificate of naturalisation under section 6 of the BNA 1981.
