Borders, Citizenship and Immigration Act 2009

Borders, Citizenship and Immigration Act 2009

2009 CHAPTER 11

Commentary

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.