- s/he has a nationality other than the one it is sought to renounce; or
- can show that s/he will get another citizenship or nationality; and
- is over 18 (or under 18 but have been married); and
- is of full capacity (i.e. not of unsound mind).
|The person never held British citizenship at all. This may affect the status of family members. For example, if a spouse applied for naturalisation on the basis of that person’s status, the spouse’s status may also be under threat. If a child was thought to have been born British because it was thought the person was British, the child may not be British at all. In such cases, British passports can be and are cancelled. There is no right of appeal but an application for judicial review can be pursued on limited lawfulness grounds.||The person was British but ceases to be so when the deprivation order is made. This does not have status implications for family members. There is a right of appeal under section 40A of the British Nationality Act 1981 or section 2 of the Special Immigration Appeals Commission Act 1997. The first of these is a full merits appeal including consideration of the reasonably foreseeable consequences of deprivation (i.e. whether forced to leave UK or not) but appeals to SIAC are on lawfulness grounds only.|
- Be stripped of their nationality by the Secretary of State through deprivation,
- Be found to have never had British citizenship, known as nullification
- Strip themselves citizenship through renunciation
A person’s citizenship status which was a result of registration or naturalisation may be deprived under section 40(3) if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. Section 40A gives a right of appeal against deprivation of nationality. This is to the First-tier Tribunal or to the Special Immigration Appeals Commission (SIAC). The Secretary of State must notify a person of the intention to deprive them of their nationality and the deprivation will not take effect until any appeal has been finally determined or the time for appealing has expired. Under the British Nationality (General) (Amendment) Regulations 2018 (SI 2018 No. 851) a person can be deprived of their citizenship by email or indeed by "service to file". In a series of three cases the tribunal has held that this appeal is a wide-ranging one which is not limited in the same way as other immigration appeals. The cases are:
(a) the citizenship status results from the person's naturalisation,
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.
- Deliallisi (British citizen: deprivation appeal: Scope)  UKUT 439 (IAC)
- AB (British citizenship: deprivation; Deliallisi considered) Nigeria  UKUT 451 (IAC)
- Ahmed and Others (deprivation of citizenship) (Pakistan)  UKUT 118 (IAC)
- On the basis of five years of residence in the UK, under section 6(1) of the 1981 Act, or
- As the spouse of a British citizen after completing three years of residence, under section 6(2)
- The section 6(1) route requires five years of residence in the UK, whereas the section 6(2) route only requires three years
- The section 6(1) route requires the applicant to have held a settled status for at least a year prior to their application. In practice, this generally means the total residence period is six years. The section 6(2) route only requires the applicant to have settled status when they apply. This means that a spouse of a British citizen can be granted indefinite leave to remain and on the very same day send off an application for naturalisation as a British citizen.
- Be free from immigration time restrictions at the date of application or for the 12 months prior to the date of application.
- Have been physically present in the UK exactly three or five years prior to the date of application.
- Not have been absent from the UK for over 270 or 450 days.
- Not have been absent from the UK for over 90 days in the 12 months prior to the date of application.
- Not have been in breach of the immigration laws in the three or five year period prior to the date of application.
- Have sufficient knowledge of life in the UK and of the English language.
- Have an intention to make the UK a permanent home (unless a spouse in which case this is not required).
- Meet the ‘good character requirement’.
Freedom from immigration time restrictionsFreedom from immigration time restrictions requires the person to hold indefinite leave to remain, permanent residence, or some other type of settled status such as a right of abode. EU citizens need to get a permanent residence card from the Home Office in order to meet this requirement. In the case of a person applying under section 6(1) there is discretion for the Home Secretary to waive this requirement. [su_box title= "Examples"] Will is an American citizen who was granted indefinite leave to remain on 1 January 2018. He is not married to a British citizen. Will must wait until 1 January 2019 before he can meet the requirement to have been free from immigration time restrictions in the 12 months prior to the date of his application. Phil is a German citizen who has lived and worked continuously in the UK since 1990. Although he has certainly automatically acquired a permanent right of residence in the UK under EU law, he is unable to apply for naturalisation. He must first apply to the Home Office for a permanent residence document. Vivian is a Canadian citizen who is married to a British citizen. She has lived in the UK for seven years, and currently has limited leave to remain as the spouse of a British citizen. Vivian is unable to apply for naturalisation until she gets indefinite leaves to remain. After Vivian gets ILR and becomes free of immigration time restrictions, she can apply immediately for naturalisation. [/su_box]
Physical presence in the UKUnder no circumstances can the requirement of physical presence in the UK exactly three or 5 years prior to the date of application be treated as fulfilled if it is not. In such cases, applications must be deferred and restated at a later date where that requirement is met. This is a statutory requirement and there is no discretion for the Home Secretary to waive this. [su_box title= "Example"] Geoffrey is a Chinese citizen wanting to apply for naturalisation under section 6(1) on 6 June 2018. In 2013, he was on holiday in the USA for a month. He left the UK on 1 June 2013 and returned on 1 July 2013. Geoffrey will be unable to apply for naturalisation between 1 June 2018 and 1 July 2018. He may choose to apply on or after 1 July 2018. [/su_box]
Absences from the UKAn applicant under section 6(1) should not have more than 450 days of absence from the UK in the five-year period prior to the date of application. An applicant under section 6(2) should not have more than 270 days of absences from the UK in the three-year period prior to the date of applications. In both types of application, the applicant must not have been absent for more than 90 days in the 12 months prior to the date of application. There is discretion for the Home Secretary to waive this requirement. Home Office policy sets out how that discretion may be applied. It is therefore not necessarily fatal to an application if the applicant has excess absences from the UK and there is often scope to present mitigating factors that led to the absences. [su_box title= "Example"] Hilary is a Japanese citizen wanting to apply for naturalisation under section 6(1). Hilary was in the UK continuously for the first four years of her relevant five-year period, but in the year prior to her application she went on a gap year to Malawi for 180 days. Her total absences in the relevant five-year period are 180 days and therefore below the threshold of 450 days, however because she has exceeded 90 days of absences in the 12 months prior to the date of application, her application is bound to be refused. She should wait until at least one year has passed since her return to the UK from Malawi. [/su_box]
In breach of the immigration lawsAny time spent in the UK while in breach of immigration law will not count towards the qualifying residence period. Where residence in breach of immigration laws does occur, it will reset the clock and the residence period restarts once residence becomes lawful again. The phrase "in breach of the immigration laws" is defined at section 50A of the 1981 Act and essentially includes anyone who was in the UK unlawfully without leave. There is discretion for this requirement to be waived in certain circumstances, but as we will see, in practice this requirement has been rolled into the "good character" requirement and extended to 10 years. [su_box title= "Example"] Ashley is a Bangladeshi citizen who came to the UK in 1997. She claimed asylum and her asylum claim was rejected. She remained in the UK and in 2011 applied for indefinite leave to remain. The Home Office delayed making a decision until 2018, at which point she was granted ILR. Ashley was in the UK unlawfully from 1997 – 2018 and therefore she must wait at least five years before being able to meet the statutory requirement of not having been in breach of the immigration laws. However, she may still fail the good character test, as discussed below. [/su_box]
Sufficient knowledge of language and life in the UKUnder Schedule 1 of the 1981 Act, all applicants for naturalisation must show sufficient knowledge of English, Welsh or Scottish Gaelic, and "sufficient knowledge about life in the UK". To pass the English language requirement, applicants will need to come from an English speaking country, have a degree taught in English, or pass an approved English language test. For the life in the UK element, the applicant must have passed the Life in the UK test. There is discretion to waive the language and life in the UK requirement where it would be unreasonable to expect the applicant to fulfil it because of age or physical or mental condition. The language and life in the UK requirement will normally be waived where the applicant is aged 65 or over.
Intention to live in the UKFor those applying under section 6(1) there is a requirement to demonstrate an intention for their principal home to be in the UK. Spouses of British citizens, applying under section 6(2), are not required to demonstrate this intention. Home Office guidance used to succinctly sum up this requirement as the need to show that the person had "thrown in their lot" with the United Kingdom. Evidence of a home and a life in the UK will generally be enough to discharge this requirement, though the Home Office may investigate further. If a person is abroad or about to go abroad it may be important to explain this and to provide sufficient evidence to show that there is an intention to live in the UK. For example, caring for a person overseas who is ill or dying is likely to be a temporary absence and should not be treated as evidence that a person has no intention to live in the UK.
The good character requirementThe Home Secretary will only naturalise a person of "good character". There is detailed guidance to Home Office caseworkers on what this means. Checks will be made in relation to criminal offences and financial solvency. Certain immigration and nationality decisions are now exempt from section 4 of the Rehabilitation of Offenders Act 1974. This means that it does not matter whether a conviction is “spent” when assessing good character. The following table sets out the policy in relation to criminal offences:
|Sentence||Impact on Nationality applications|
|1.||4 years or more imprisonment||Application should be refused, regardless of when the conviction occurred.|
|2.||Between 12 months and four years imprisonment||Application should be refused unless 15 years have passed since the end of the sentence.|
|3.||Up to 12 months imprisonment in the last seven years||Applications should be refused unless seven years have passed since the end of the sentence.|
|4.||A non-custodial offence||Applications should be refused if the conviction occurred in the last three years.|
Citizenship ceremoniesSection 42 to 42B and Schedule 5 of the 1981 Act provide that anyone over the age of 18 who acquires British citizenship, whether by registration or naturalisation, must do so at a public ceremony and is required to take the oath and pledge of allegiance. Ceremonies are normally held in groups and normally take place at the local authority closest to the applicant’s home address. People can invite guests. A fee is payable and this fee makes up a proportion of the naturalisation application fee. In exceptional circumstances an exemption may be made for any or all of the following:
- the requirement to attend a citizenship ceremony
- the requirement to make an oath of allegiance and pledge
- the time limit for attending a ceremony
Challenging nationality decisionsThere is no right of appeal to a court against refusal to grant nationality. There is however a mechanism similar to administrative review where a formal reconsideration request can be made on Form NR. An application for reconsideration carries a fee. Ultimately, if that is refused, the only remedy would be judicial review. [post_title] => Naturalisation [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => naturalisation [to_ping] => [pinged] => [post_modified] => 2018-08-10 14:56:02 [post_modified_gmt] => 2018-08-10 13:56:02 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/naturalisation/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73796 [post_author] => 6452 [post_date] => 2018-08-07 16:16:14 [post_date_gmt] => 2018-08-07 15:16:14 [post_content] => [toc] For those who are not automatically British citizens by operation of law, there may still be an entitlement to registration as British citizens. Registration is a process where a person can apply to the Home Office providing evidence that they are entitled to British citizenship under certain sections of the 1981 Act. If the Home Office accepts that evidence, the person will be registered as British. The most common types of registration application are those made by children. In fact, many of the categories of registration are time limited: the entitlement to register ends on the child's 18th birthday. Some adults can register as well, however. This type of registration is particularly common for adults who would have been born British had nationality law at the time of their birth not been discriminatory. A successful application for registration will result in a certificate of registration being issued by the Home Office, confirming the date of registration and the statutory provision under which the person was registered. Anyone who is over the age of 18 at the date of registration will have to attend a citizenship ceremony and swear an oath of allegiance. Registration is not retrospective: the person is only British from the date that a certificate of registration is issued.
Registration of children
Registration on parent becoming British or settled or a member of the armed forcesChildren are entitled to registration under section 1(3) of the British Nationality Act 1981 if:
- they were born in the United Kingdom on or after 1 January 1983; and
- they were not British citizens at birth because at the time neither parent was a British citizen or settled here; and
- while they are minors, either parent becomes a British citizen or becomes settled in the United Kingdom; and
- they are minors on the date of application
Registration after birth abroad to a British citizen "by descent" parentWhilst birth abroad to a British citizen "by descent" will not automatically lead to British citizenship, it is possible for an application to be made for the child’s registration if the British parent has lived in the UK for a continuous period of three years at some time before the child’s birth. This application is made under section 3(2) of the 1981 Act. The parent must not have been absent from the UK for 270 days or more over the chosen three-year period. Applications cannot be made under this section after the child’s 18th birthday. A child registered under section 3(2) will also become a British citizen "by descent". Alternatively, if the child and both of her parents (one of whom is British "by descent") have lived in the UK for a continuous period of three years after the child’s birth abroad, then an application can be made under section 3(5) of the 1981 Act for registration of the child as a British citizen "otherwise than by descent". The child and parents must not have been absent from the UK for more than 270 days during the three-year period. This offers a more desirable citizenship status to the child (from the point of view of the child passing citizenship down to the next generation). But it involves the child living in the UK, which in practice may be less preferable than registration from abroad under section 3(2). [su_box title= "Example"] Louise is born in 2018 in Singapore. Her mother is a British citizen by descent and her father is Japanese. Her mum attended university in the UK and worked in the UK for a continuous period with only minimal holidays abroad between 2010 and 2016. Louise can apply to be registered as a British citizen by descent under section 3(2). Rodrigo is born in 2018 in Japan. His mother is a British citizen by descent and his father is Singaporean. His mother was born in Japan and grew up in Japan. She has only ever been to the UK on short holidays. His parents want to move the family to the UK. There is no mechanism for Rodrigo to register as a British citizen at this point in time. He and his father will need to obtain appropriate leave to enter the UK. If they live in the UK for three years before Rodrigo turns 18, Rodrigo can apply to be registered as a British citizen under section 3(5). [/su_box] These types of application for registration are made on Form MN1.
Registration at the Home Secretary’s discretionSection 3(1) allows for any child to be registered as a British citizen, upon application, at the discretion of the Home Secretary. Discretion will normally be exercised in accordance with Home Office policy. This type of application for registration is made on Form MN1.
Registration of people of any age
Registration due to 10 years of continuous residence in the UK since birthBoth adults and children are entitled to registration under section 1(4) of the 1981 Act if they:
- were born in the United Kingdom on or after 1 January 1983; and
- were not a British citizen at birth because at the time neither parent was a British citizen or settled here; and
- were aged 10 years or more on the date of application; and
- have lived in the United Kingdom for the first 10 years of their life; and
- during that 10 years have not been out of the United Kingdom for more than 90 days in any one of those years
Registration of people born abroad to a parent serving as a member of the UK armed forcesA person born outside the United Kingdom on or after 13 January 2010 whose mother or father was a member of the armed forces and serving outside of the UK is entitled to be registered as a British citizen under section 4D of the 1981 Act, using Form MN1.
Registration of people born abroad before 1983 to a British citizen motherThis is one of two registration categories designed to make up for historic gender discrimination in British nationality law. Before 1 January 1983, children born abroad to a British citizen mother could not inherit her British citizenship. Citizenship could only be passed through the male line. Section 4C of the 1981 Act provides this registration route as a remedy for that past discrimination. A person can only apply if they would have automatically become a British citizen on 1 January 1983 had women been able to pass citizenship on to their children at the time of that person’s birth. An application of this type must be made on Form UKM. [su_box title= "Example"] Linda was born in South Africa in 1973. Her father was South African and her mother a British citizen "otherwise than by descent". Linda was not born British but can now apply to register as a British citizen under section 4C. [/su_box]
Registration of "illegitimate" children born before 1 July 2006 to an unmarried British fatherThis is the second registration category designed to remedy historic gender discrimination. As we have seen, children born prior to 1 July 2006 out of wedlock were unable to inherit British citizenship from their father (unless they were subsequently "legitimated" as a result of their father marrying their mother). Section 4F allows for the registration of children born before 1 July 2006 who would have automatically become British citizens had their father been married to their mother at the time of their birth, or who would have been entitled to apply for registration under other provisions of the 1981 Act. This type of application is made on Form UKF. [su_box title= "Example"] Ailsa was born in the UK in 1986. Her mother was Dutch and her father was British. They were unmarried when Ailsa was born and subsequently separated. Her mother did not have settled status at the time of her birth. Ailsa grew up in the UK. She did not automatically acquire British citizenship at birth because she was an "illegitimate" child. She can now apply to register as British under section 4F. [/su_box]
Registration of stateless peopleSchedule 2 of the 1981 Act has "“provisions for reducing statelessness” -- that is, not having the nationality of any country. These provisions differ depending on whether the applicant was born in the UK/a British overseas territory, or whether the applicant was born abroad. A person born in the UK (or a British overseas territory) on or after 1 January 1983 can register for a British citizenship status under paragraph 3 of schedule 2 if:
- they were born stateless and have remained stateless;
- they were under the age of 22 on the date of application;
- they were in the UK (or a British overseas territory) at the beginning of the period of five years ending with the date of application and the number of days of absence from the UK (or British overseas territory) in that period does not exceed 450.
- they were born stateless and have remained stateless;
- at the time of their birth their father or mother was a British citizen, a British overseas territories citizen, a British Overseas citizen, or a British subject, under the 1981 Act;
- they were in the United Kingdom (or a British overseas territory) at the beginning of the period of three years ending with the date of the application and that the number of days of absence from the United Kingdom (or the British overseas territories) in that period does not exceed 270.
- by birth after 1 January 1983
- by section 11 of the 1981 Act, which ensured that most CUKCs with a connection to the UK automatically become British citizens on 1 January 1983
Acquisition by birth in the UKThe plain fact of being born in the United Kingdom since 1 January 1983 does not itself make someone a British citizen unless it is combined with a parental link to a person settled in the United Kingdom. Section 1(1) of the 1981 Act says:
A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is–"Settled in the United Kingdom or that territory" is defined in section 50 of the 1981 Act as:
(a) a British citizen; or
(b) settled in the United Kingdom or that territory.
being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain.Effectively this means that the parent in question must be ordinarily resident in the UK at the time of birth and have a settled immigration status such as indefinite leave to remain, a right of abode, or permanent residence under EU law. It would not be enough, in other words, to be born to a parent living in the UK with a visa which grants only limited leave to remain. [su_box title= "Examples"] Jimmy is born in the UK in 2018. His parents are both British. Jimmy is automatically a British citizen by operation of law. Saul is born in the UK in 2018. His parents are Israeli nationals ordinarily resident in the UK and both have limited leave to remain as students due to expire in 2019. Saul does not automatically acquire British citizenship because neither of his parents are British and neither of his parents are settled in the UK. Chuck is born in the UK in 2018. His mother is Spanish and arrived in the UK in 2017 to study at university. His father is American, ordinarily resident in the UK and has indefinite leave to remain. Chuck is automatically a British citizen by operation of law because his father is settled in the UK. [/su_box]
"Illegitimate" childrenUntil 1 July 2006, a child could establish his right to nationality via either parent only so long as they were married when he was born. An "illegitimate" child of an unmarried British father would not acquire British citizenship unless the child could do so via the mother. This old-fashioned and discriminatory approach finally came to a partial end as of 1 July 2006, though only for children born after that date. [su_box title= "Examples"] Rachel was born in the UK in 2005 to a Bolivian mother and British father. The mother was a student with limited leave to remain. The parents were not married and therefore Rachel was deemed to be an ‘illegitimate’ child. Rachel was not automatically born British, although she could almost certainly later have been registered as British (see course unit on registration). Ross was born in the UK in 2007 to the same Bolivian mother and British father. The mother was still a student and still not settled in the UK. The parents were still not married. Unlike Rachel in the example above, Ross was automatically born British because from 1 July 2006 onwards the requirement for a father to be married to the mother in order to pass on citizenship was removed. [/su_box]
Children born in UK to members of the armed forcesSection 1(1A) of the 1981 Act, provides that a person born in the United Kingdom or a qualifying territory shall be a British citizen if at the time of the birth his father or mother is a member of the armed forces. This means that it is possible for a child born in the UK to acquire British citizenship despite neither parent being British or having settled status. [su_box title= "Example"] Zelda is born in the UK in 2018. Her father is Fijian and serving in the British Army at the time of her birth. Her mother is neither British nor settled. Zelda automatically acquires British citizenship under section 1(1A) of the 1981 Act. [/su_box]
Acquisition by adoptionSection 1(5) of the 1981 Act allows adopted children to acquire British citizenship where:
- the adoption is authorised by order of a court in the United Kingdom on or after 1 January 1983 or, on or after 21 May 2002, by an order of a court in a qualifying territory; and
- the adopter or, in the case of a joint adoption, one of the adopters is a British citizen on the date of the adoption order
- it is a Convention adoption under the 1993 Hague Convention on Intercountry Adoptions; and
- the adoption is effected on or after 1 June 2003; and
- the adopter or, in the case of a joint adoption, one of the adopters is a British citizen on the date of the Convention adoption; and
- the adopter or, in the case of a joint adoption, both of the adopters is habitually resident in the United Kingdom on the date of the Convention adoption.
Abandoned minorsSection 1(2) makes provision for abandoned minors found in the UK to be treated as having been born in the UK to a British citizen parent unless the contrary can be proven by the Home Office.
Acquisition by birth outside the UKA British citizen "otherwise than by descent" can have a child outside the UK and the child will be born British "by descent". A British citizen by descent cannot automatically pass citizenship to a child born outside the UK. This is because of section 2 of the 1981 Act:
(1) A person born outside the United Kingdom and the qualifying territories after commencement shall be a British citizen if at the time of the birth his father or mother—There is a more detailed definition of who is a British citizen by descent in section 14. Frustratingly, British passports belonging to citizens by descent and otherwise than by descent look identical and do not differentiate between the two types of citizenship. But you can usually determine this by looking at the person’s place of birth: if it is outside the UK, they are likely "by descent" only. [su_box title= "Examples"] Richard is born in 2018 in Costa Rica. His father is British and was born in the UK (ie otherwise than by descent). His mother is Costa Rican. Richard automatically acquires British citizenship by descent from his father under section 2 of the 1981 Act. If Richard has children of his own outside of the UK, he will be unable to automatically pass on his citizenship to them. Malcolm was born in 2018 in the USA. Both of his parents were born in the USA and are dual American citizens and British citizens by descent on account of their own parents having been born in the UK. Malcolm does not automatically acquire British citizenship, because his parents are British by descent only and unable to automatically pass on their citizenship to him. [/su_box] [post_title] => Automatic acquisition by operation of law [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => automatic-acquisition-by-operation-of-law [to_ping] => [pinged] => [post_modified] => 2018-08-10 14:44:55 [post_modified_gmt] => 2018-08-10 13:44:55 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/automatic-acquisition-by-operation-of-law/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73793 [post_author] => 6452 [post_date] => 2018-08-07 16:12:57 [post_date_gmt] => 2018-08-07 15:12:57 [post_content] => The two main categories of British nationality (or "citizenship statuses") that can still be acquired post-1983 are:
(a) is a British citizen otherwise than by descent...
- British citizenship, and
- British overseas territories citizenship
3. British overseas citizenship
4. British subject status
5. British national (overseas) citizenship, and
6. British protected person statusMost people will hold British citizenship (number 1 above). This is the main type of British nationality. That said, it is important that practitioners are aware that not all British nationals are the same. Clients may well produce passports of their own or their parents' or even grandparents' which on their face look just like any other British passport, but inside show one of the other five statuses listed above. These clients can often be unaware of the different types of British nationality and it is important to recognise the limitations that exist when faced with one of these. Crucially, none of the other types of British citizenship status confer a right of abode. They do not exempt the holder from immigration control. Only a holder of "full" British citizenship has a right of abode. Holders of any of the other statuses must still apply for leave to enter and remain in the same way as any other foreign national would. It is for this reason that these statuses are often described as "useless", though they do allow the holder to vote in elections (if resident in the UK) and to access British consular assistance. Holders of some of these statuses may benefit from simpler routes to upgrade to full British citizenship by registration or application. It is important to check this before advising them on their status in the UK. Within "full" British citizenship, it is also worth being aware of the distinction between two types:
- a British citizen "otherwise than by descent" and
- a British citizen "by descent"
Pre 1949Under the 1914 Act, British citizens were known instead as "British subjects". If you were not a British subject you were likely considered to be an "alien".
1949 to 1983"British subject" status was split in two by the 1948 Act. All British subjects either:
- gained the status of "citizen of the United Kingdom and Colonies" (CUKC), or
- were given the citizenship of one of the nine independent Commonwealth countries
1983 onwardsThe 1981 Act established the citizenship status of "British citizen", as well as (initially) two other types of citizenship status that we will look at in the next unit. Section 11 of the 1981 Act made provision for certain CUKCs to become British citizens on passage of the Act. The principal requirements were that a person, on 31 December 1982:
- Was a CUKC, and
- Had a right of abode in the UK
- Birth or adoption
- Am I a British citizen?
- If I am not, how do I become one?
- automatically, by operation of law
- by registration
- by naturalisation
I want to apply for my British passport.This is a phrase frequently heard from foreign clients who are seeking to become British citizens. There is a significant technical difference in applying for British citizenship and applying for a British passport. A passport is merely a travel document issued to British citizens. Only if you are already a British citizen can you apply for a British passport. If you are not automatically a British citizen by operation of law, you must first apply to become a British citizen either through naturalisation or registration. Passports in the UK do have greater significance than in a lot of other countries because the UK does not have ID cards. Very often a British passport will be the only straightforward way in which a British citizen can actually prove it.
I was born in the UK so I am a British citizen.Birth in the UK does not automatically make you entitled to British citizenship. Acquisition of citizenship is more closely linked to the immigration status of the child's parents. Acquisition will be covered in depth in module 2.
I have indefinite leave to remain and therefore I am a British citizen.This is an issue that has affected a large number of the Windrush generation who just assumed that they were British because they had spent their lives living and working in the UK, often owning homes and paying taxes. In fact, unless they had taken the step of applying to naturalise as British citizens, they were merely deemed to have indefinite leave to remain (‘ILR’). ILR is not the same as British citizenship. ILR means that someone can stay in the UK for as long as they like but this status can be much more easily lost or revoked than British citizenship and it does not give the holder all of the same entitlements as a British citizen, such as the right to vote in elections or access to British consular assistance abroad. Unlike other parts of immigration law, nationality law is incredibly slow to change, primarily because it is set out in an Act of Parliament: the British Nationality Act 1981. In this course we will refer to it as "the 1981 Act". Unlike with the Immigration Rules, the Home Secretary does not have the power to make sudden and quick changes to the 1981 Act. Any changes must be voted on and enacted by Parliament. The 1981 Act has been in force since 1 January 1983. It has been amended and expanded several times over the years. It is the "go-to" for all nationality queries, though often practitioners will need to delve further back into the past to work out the British nationality status of people born before 1 January 1983. That is why the next unit is about the history of British nationality law. [post_title] => Introduction [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => introduction-13 [to_ping] => [pinged] => [post_modified] => 2018-08-10 14:19:45 [post_modified_gmt] => 2018-08-10 13:19:45 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/introduction-13/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73788 [post_author] => 6452 [post_date] => 2018-08-07 14:06:18 [post_date_gmt] => 2018-08-07 13:06:18 [post_content] => The Immigration Rules provide that somebody who wishes to stay in the UK on the basis of their family ties but does not otherwise meet the requirements of Appendix FM can argue that there are “exceptional circumstances”. Paragraph GEN.3.2.(2) says that:
…the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member…But how do exceptional circumstances applications work in practice? To find out, we sat down with Free Movement contributor Gabriella Bettiga, a consultant solicitor who runs training courses with ILPA and HJT Training, in between sitting on the Tribunal Procedure Committee and chairing the costs and funding adjudicators at the Legal Aid Agency. The full interview is available as a podcast, which you can listen to in your browser or download (see links at the top of this post). Some of Gabriella’s exceptional circumstances top tips are transcribed below. [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2018/07/Gabriella-FINAl.mp3"][/audio]
The first step is to take very clear instructions on the situation. You don’t want to be surprised down the line by something new. Often clients say “oh, you never asked me about such-and-such” whereas you think it’s obvious that they should have disclosed that information. Take the example of a couple, one of whom is British and the other not. I would ask first to see proof of the relationship, the history of the relationship etc. Did they have any previous relationships? Do they have any family abroad? Do they have any family here? Anybody with medical conditions? Do they have children, even from other relationships? Because, in that last example, one situation where you could be successful is where one party — especially the settled one — has a child from another relationship, they play an active part in the life of the child and it would be unreasonable to expect the other child to move to another country. So always ask about everybody else involved, to start with. You also need information about the country where they’re supposed to go. Is there any reason they think they cannot go back? Obviously your client’s not going to be the expert for objective evidence on that country but they may have specific reasons why one or both of them cannot go back. In terms of documentary evidence, some of it is the usual suspects. Again, if we’re talking about a couple, you would have proof of the relationship, of any children attending school and how well they’re doing, any medical evidence. Basically anything that the client tells you has to be backed up by evidence. It’s also important to be creative in terms of evidence. I remember a case where we had to prove that the client was living at a particular address at one point, so we ended up on Zoopla! It’s not something you’d think of immediately but you have to find ways to prove your point in any possible way. There’s no magic number for how many documents to include, but I have a couple of rules. You have to include as much as possible to prove each point, and omit any document which doesn’t prove any point. Sometimes clients will come to you with a lot of paperwork and you have to sift through it. If you don’t need it for any reason, don’t put it in — it just confuses the matter. The presentation of your application is very important. Prepare a clear bundle. In the body of your representations, refer to the specific tab of the bundle, indicating the documents you are using to prove your point. I would always include an index, divided into tabs. Everything has to be tidy — not just because you personally might be tidy-minded, but because if you put yourself in the shoes of a Home Office decision-maker, would you tackle a messy job first or would you prefer to start with something easy? In Article 8 cases I can think of very few instances where you don’t need a statement. It doesn’t have to be too long, but it has to be relevant and address every possible objection the Home Office may have. So you have to guide your clients — don’t just let them write whatever they want! You know what needs to be explained. That said, the statement is the client’s voice, so it should be in their style, up to a point. It helps the person come out of the file of paper. I sometimes put in photographs of the clients and their family. Again, putting yourself in the shoes of the decision-maker, if they read the statement and see the people, I think that’s probably at least a little helpful for your case. If you’re lucky enough to establish contact with a Home Office decision-maker, that’s excellent. It’s very rare, but it means that if they have any doubts about evidence etc, you can discuss it with them and maybe submit new evidence rather than them saying no. I have much more success in circumstances where I’ve managed to get hold of a human being. You have to look at the big picture, see the whole situation and decide whether or not it’s reasonable for your clients to go back or do they need to stay here. But you also need to focus on some of the details, because sometimes you can win the case on one single document. I had a scenario where somebody had a very bad immigration history — not the strongest case, I wasn’t very hopeful. We found a specific medical issue showing that the client probably wouldn’t be able to board a flight. It was buried in a medical report and we had to dig it out and tell the medical expert to elaborate on that. That was our winning argument and limited leave was granted eventually. But there’s no point in making an application that you know is going to fail. Before you throw all your energy into a hopeless application, think about whether there’s any other way for the client to remain in the country. Sometimes instead of a hopeless Appendix FM exceptional circumstances application, you can suggest leaving the country and applying for entry clearance if they meet the Rules. Everybody’s really scared to leave and apply from outside the UK, they think they will never come back, but sometimes it works. If they meet the Rules, that’s something clients should think about, rather than remaining here and wasting a lot of money, time and stress on something that’s not going to work.[post_title] => Podcast interview with Gabriella Bettiga on exceptional circumstances applications [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => podcast-interview-with-gabriella-bettiga-on-exceptional-circumstances-applications [to_ping] => [pinged] => [post_modified] => 2018-08-15 17:35:00 [post_modified_gmt] => 2018-08-15 16:35:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/podcast-interview-with-gabriella-bettiga-on-exceptional-circumstances-applications/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73538 [post_author] => 23 [post_date] => 2018-07-30 16:28:14 [post_date_gmt] => 2018-07-30 15:28:14 [post_content] => Paragraph 34 of the Immigration Rules on making a valid application does not apply to applications for Entry Clearance. However, where applicable, applicants must still submit specified documents and use the appropriate application forms and Appendixes. In addition, knowing the correct procedure to submit an application from abroad is not always easy, as there is no one place setting out the procedure to follow. Instead, where and how to submit the documents depends on where the application is made and which type of application it is. The difficulty in finding out the correct procedure for an application from overseas is partly due to the fact that the Home Office has outsourced the administration of visa applications to private commercial partners, including VFS Global and TLScontact, who have incomplete and sometimes inaccurate information on making applications on their websites. That said, all applications follow some common patterns set out below.
Where to submit an application from abroadAn applicant submitting an application for Entry Clearance must be outside the UK, the Channel Islands or the Isle of Man when the application is made. Most applications must be submitted to a Visa Application Centre (VAC) in the country of nationality of the application, or in the country in which the applicant is lawfully resident. However, there are exceptions for some applications, including applications for visitor visas, short-term student visas, Tier 5 (Temporary Worker) and Tier 5 (Youth Mobility Scheme). These applicants can submit their application from any country in which they are present lawfully. Applicants for EEA Family Permits can apply from any country, whether or not they are lawfully resident there. Some countries do not, however, have Visa Application Centres. In that case, the Find a visa application centre page will tell the applicant which country they must travel to to submit their application. [su_box title="Examples"] Matt is a Chinese national, living in the US on a valid work permit. He is applying for a Tier 1 (Entrepreneur) visa. Matt can apply from China, the country of which he is a national, or the US, where he is lawfully resident. If applying from the US, Matt will need to submit evidence of his lawful residence there, for example a residence permit. Jane is a dual national of Togo and Nigeria, living in Togo. She wants to apply for a visitor visa. Jane cannot apply in Togo as there is not Visa Application Centre. The Find a Visa Application Centre directs her to Ghana instead. Jane can apply from Ghana (as she is a national of Togo), Nigeria (as she is a national of Nigeria), or anywhere else where she can stay lawfully (as she is applying for a visitor visa). [/su_box]
Method of applicationAll applications except for applications in North Korea are made online. Where available, the Access UK (UK Visas and Immigration) should be used, and this should become the only available service by the end of 2018. In the meantime, some applications are still made using the Visa4UK online form service. In North Korea, hard copy forms must be used, and payment must be made when the applicant attends their biometric appointment at the British Embassy in Pyongyang. When setting up the online form on the Visa4UK website, an applicant is given drop down options for identifying the reason for applying to enter the UK. These are not always straightforward, and one might need to experiment a bit before finding the appropriate application category. Another way to ensure that the application is correct is, unfortunately, when the application has been completed and is about to be paid for. At that stage, the applicant will be told the fee to pay, and this should correspond to the fee on the fees table. In addition, some applications must also be accompanied by a paper Appendix. For example, applications for visas as the spouse of a British or settled resident must be accompanied by Appendix 2, while applications for a Tier 4 student visa must be accompanied by Appendix 8. The list of Appendices (and forms for those applying in South Korea) is on the gov.uk website. Once the application is complete, an applicant must:
- Pay for the application. This is usually done online (except for applications from North Korea, where payment is made at the Visa Application Centre
- Book an appointment at the Visa Application Centre
- Where the Visa Application Centre is managed by TLScontact, register on their website and, if they want, pay for their added service (see below)
- Where the Visa Application Centre is managed by VFS Global, and the applicant wishes to use an additional user pay service, pay for this on their website
- Print the application form and sign it.
- Attend the Visa Application Centre with:
- The complete, printed and signed for application form and, where required, the printed and complete Appendix
- Where necessary, one passport-size photograph
- The supporting documents
- The applicant must attend the Visa Application Centre with the original supporting documents, which are then sent by the commercial partner to the decision maker.
- The applicant must attend the Visa Application Centre with the original supporting documents, and a full copy of the same. The commercial partner will then verify the original documents, scan the copy, and send it to the decision maker. They will return all of the supporting documents except for the application form and passport to the applicant.
- The applicant must attend the Visa Application Centre with their application form and passport only, and send the remaining original documents to the decision maker by post or courier.
Specified documentsLike with applications made from inside the UK, some applications require specified documents, without which an application is likely to be refused. The Immigration Rules defines 'specified documents' at paragraph 39B, discussed in more detail in the previous unit. In addition to specified documents, applicants should check whether they need a TB certificate confirming they are free from TB. Applicants needing a TB certificate are those who:
- Are applying for leave for a period of more than 6 months, or for leave as fiancés/proposed civil partners; and
- Have been resident for six months or more in any of the countries listed at Appendix T of the Immigration Rules immediately prior to the application.
- leave as a Tier 1 (Investor);
- leave as Tier 1 (Entrepreneur);
- a Tier 2 visa to work in a health, social care or educational categories listed at the Immigration Rules, Part 6A, para 245HB(q)
- dependants aged 18 or over of the above Tier 2 workers.
- confirmation that it is an accurate translation of the original document;
- the full name and original signature of the translator or an authorised official of the translation company; and
- the translator or translation company’s contact details
Date and timing of applicationAn applicant can apply for entry clearance within three months of their intended date of travel to the UK. The date of application is the date that payment is made. For the overwhelming majority of applications, the payment is made online when submitting the application. That will be the date of the application. However, in North Korea, applications are made on a paper form, brought to the Visa Application Centre, and payment is made at the visa application centre. In those cases, the date of the application will be the date that payment is made at the Visa Application Centre appointment. The date of the application is important for many applicants. For example
- sponsored workers or students must take into account the validity of their Certificate of Sponsorship or Confirmation of Acceptance for Studies.
- Partners applying under Appendix FM and many PBS migrants must make sure they meet the financial requirement on the date of the application.
- Dependant children of PBS migrants must be under 18 at the date of the application.
Fees and extra servicesMost applicants for leave to enter the UK must pay an application fee (there is no fee for those applying for Family Reunion as the family members of refugees or persons with humanitarian protection in the UK). The application fee must normally be paid online or at the Visa Application Centre, in the currency of the country in which the application is made. This usually means that the fee may be higher due to the currency exchange rate used by the Home Office. There is a fees table online. The Secretary of State has discretion to grant a fee waiver to applicants applying for Entry Clearance, but there is no guidance on how to submit such application for a fee waiver. In addition, some applicants are liable to pay an Immigration Health Surcharge, which is, as of August 2018, £150/year for students or those applying under the Tier 5 (Youth Mobility Scheme); and £200/year for other applicants. If an application includes part of a year that is less than 6 months, the application will pay half of the yearly amount. If an application includes part of a year that is 6 months or more, the applicant will pay for a whole year. There is an online form to calculate the Immigration Health Surcharge payable. The Immigration Health Surcharge is not paid by:
- Those applying for visitor visas
- Those who apply to come to the UK for six months or less (e.g. short-term students and fiancés)
- those who apply for indefinite leave to enter;
- EEA nationals and their family members;
- those applying relying on the European Communities Association Agreement with Turkey
- dependants of HM forces and dependants of armed forces personnel who are exempt from immigration control
- British Overseas Territory citizens resident in the Falkland Islands
- Priority visa services, to put an application in front of the queue. The Home Office suggests that this is not suitable for those with poor immigration histories.
- Service to keep a passport while the application is outstanding.
- Courier return services, for the applicant to have their passport and documents returned at their preferred address rather than having to collect it at the Visa Application Centre
- SMS application tracking
- Separate 'premium/platinum' lounge/facilities.
Grant of Entry ClearanceApplicants granted entry clearance for more than six months are issued with a short-term biometric entry clearance, generally in the form of a vignette stamped on their passport, valid for 30 days. The start date of the visa will be the date of intended travel indicated by the applicant in their application or, if later, the date a decision is made on the application. Applicants must travel to the UK during those 30 days. Within 10 days of their arrival to the UK, or before the expiry of their vignette, whichever is the earliest, they must go to the designated Post Office (the details of the Post Office will be on the letter confirming their grant of leave) to collect their Biometric Residence Permit. The Biometric Residence Permit will be valid until the expiry date of their leave.
Summary example of application from abroadLucas is applying for a Tier 1 (Entrepreneur) visa. He is an Australian national, who has been living lawfully in Hong Kong for the past 3 years. Before then, Lucas lived in Australia. Lucas decides to submit his application from Hong Kong. Lucas completes the application form on the Visa4UK website, and checks that no Appendix is required for Tier 1 (Entrepreneur) applicants. He submits the form online, and pays the application fee of £1,021, and the Immigration Health Surcharge fee of £700 (this is because Lucas will be granted leave to enter valid for 3 years and 4 months). He books an appointment for 10 days later at the Visa Application Centre in Hong Kong. He prints off from the Visa4UK website the completed application form and confirmation of appointment at the Visa Application Centre. The Visa Application Centre in Hong Kong is managed by VFS, and Lucas visits their website to pay for the priority visa service, as he wishes to have a quick decision on his application. Lucas then prints the receipt of payment for the priority visa service. Lucas attends the Visa Application Centre on the day of his appointment with:
- Printout of the email confirming the details of his appointment
- Printed receipt confirming payment of the priority visa service
- A completed and signed application form.
- His current valid passport, which has one blank page
- One expired passport which he used in the 10 years prior to the application
- Evidence of his permission to live in Hong Kong
- A TB certificate, as Hong Kong is on the list of countries at Appendix T of the Immigration Rules, and he has lived there for more than six months.
- His criminal record certificates for Hong Kong and Australia, the 2 countries where he has lived for more than 12 months in the 10 years prior to the application
- His original bank statements showing that he has held more than £203,310 for 90 days in his account (this is to meet the financial requirement and the available funds investment)
- His business plan and other evidence of his genuine intention to start a viable business in the UK
10 year rule on long residence
Paragraph 276B of the Immigration Rules enables a person with 10 continuous and lawful years of residence in the UK to apply for indefinite leave to remain.To be granted indefinite leave to remain under this route, applicants must:
- have had continuous residence in the UK for 10 years (see below)
- have had lawful residence in the UK for 10 years (see below)
- there are no reasons why granting leave is against the public good
- they have passed the Life in the UK test
- they speak English at level B1
- they are lawfully resident in the UK at the time of the application except
- for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016
- where overstaying on or after 24 November 2016, leave was nevertheless granted in accordance with paragraph 39E of the immigration rules.
Continuous residenceParagraph 276A(a) sets out the definition of "continuous" for the purposes of these rules. Broadly speaking, continuous residence will not be broken when the person
- Has leave when he or she leaves;
- Does not remain outside the UK for more than six months at any one time;
- Has leave when he or she returns; and
- Is not outside the UK for more than 18 months (or 540 days) in total.
There is one exception to the requirement of having leave at the time of leaving and returning to the UK. The Long Residence guidance confirms that continuous residence is not broken if someone
departed the UK before 24 November 2016, but after the expiry of their leave to remain, and applied for fresh entry clearance within 28 days of that previous leave expiring, and returned to the UK within 6 months.
Robert is from the USA. He has leave as a student in the UK valid until 4 October 2014. He departs voluntarily on 6 October 2014, two days after the expiry of his leave. He applies for a new student visa from the USA on 10 October 2014, which is granted, and returns to the UK on 31 October 2014.
Robert left the UK after the expiry of his leave to remain, but before 24 November 2016. He applied for fresh entry clearance within 28 days of that previous leave expiring, that is within 28 days of 4 October 2014. In addition, Robert was not out of the UK for more than six months. This means that the continuity of his residence is not considered broken and he may in future apply for indefinite leave to remain relying on the 10-year lawful residence rule.
Had Robert left on 6 October, and applied for a new student visa after 1 November 2014, that is more than 28 days after the expiry of his leave of 4 October, then he would have broken the continuity of his residence, even if he returned on 31 October 2014, within six months. If intending to make an application for indefinite leave to remain following 10 years’ continuous residence in the UK in the future, Robert will only be able to "start the clock" from 31 October 2014.
[/su_box]In addition, The Home Office policy on long residence cases covers some situations which seem to fall outside the rules. For example, the policy states that where there are absences in excess of six months at once or 540 days in total:
it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.
Caseworkers are instructed to consider the reason for absences and whether the applicant returned to the UK as soon as they were able. There is little further elucidation of when discretion might be exercised, suggesting that it will be rare, but not impossible.
Matt is from Chile. His family is wealthy and he was sent to the UK to be educated from age 11. He attended a private boarding school then went to university and achieved a first class degree in engineering. He has been living in the UK for 12 years in total.
However, Matt did not remain in the UK in school holidays when he was a child; he returned home to stay with his parents. His total absences from the UK exceed 540 days. The fact that these absences were beyond his control, occurred when he was a child and were for a very good reason are irrelevant under the rules and Matt cannot succeed under the rules.
It is possible that discretion might be exercised in Matt's favour under the policy, although it does not seem likely as the circumstances are not "compassionate" as such.
He might be able to succeed on a human rights claim, although it is likely to require an appeal.
Lawful residence"Lawful residence" is defined at paragraph 276A(b) of the Rules. Lawful residence includes living in the UK with leave to enter or remain, or living in the UK on temporary admission or bail (e.g. asylum seekers) or exemption from control (e.g. diplomats) if that status is immediately followed by leave.
Nora is a refugee. When she claimed asylum, she was lawfully in the UK as a student and she was granted immigration bail. Because her case was complex, no decision was made on her case for four years. This is unusual but does sometimes occur. When a decision was finally reached she was refused asylum. She appealed. All the way through the application and appeal process her status continued to be immigration bail.
Nora's appeal was eventually allowed after two years and she was recognised as a refugee. She was granted five years of leave. Before the expiry of that five year period, Nora will be eligible to apply for indefinite leave to remain under the 10-year rule because she was on immigration bail and was then immediately granted leave.
Where a person overstays, even for a short period or even accidentally, this will be unlawful residence. However, the Long Residence guidance confirms that an application may be granted even when there are periods of overstay, provided the applicant:
has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
meets all the other requirements for lawful residence
Paragraph 39E, in turn, states:
This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Ono is a student from Nigeria. He has been living and studying in the UK for 10 years and he wants to make an application for indefinite leave to remain under the 10 year rule.
It turns out that on two occasions, Ono has unwittingly overstayed. The first time was in September 2014. Ono's student leave expired on 3 September 2014 but he did not obtain a new CAS until 5 September 2014. He applied for student leave on 6 September 2014, and this was granted.
On 30 November 2016, Ono's student leave expired. He applied for leave to remain as a spouse on 4 December 2016. He could not apply before because he was admitted in hospital following an emergency and was only released on 3 December. Although he applied after the expiry of his leave, the Home Office granted his application in accordance with paragraph 39E because it was submitted within 14 days of the expiry of his leave and the Home Office considered there was a good reason for the delay in his application.
Provided he meets all the other requirements for indefinite leave following 10 years lawful residence, Ono's application should succeed. The first period of overstay should be disregarded because he applied less than 28 days after the expiry of his previous leave, and the overstay ended before 24 November 2016. The second period of overstay should be disregarded because the gap was after 24 November 2016 however Ono was granted leave in accordance with paragraph 39E.
In addition, the long residence guidance instruct caseworkers to consider exceptional circumstances when the period of overstay was longer than 28 days and prior to 24 November 2016.
There does not appear to be an equivalent provision when the period of overstay was longer than 14 days after 24 November 2016.
The guidance goes on to confirm that:
The threshold for what constitutes ‘exceptional circumstances’ is high, but could include delays resulting from unexpected or unforeseeable causes. For example:
- serious illness which meant the applicant or their representative was not able to submit the application in time – this must be supported by appropriate medical documentation
- travel or postal delays which meant the applicant or their representative was not able to submit the application in time
- inability to provide necessary documents – this would only apply in exceptional or unavoidable circumstances beyond the applicant’s control, for example:
- it is the fault of the Home Office because it lost or delayed returning travel documents
- there is a delay because the applicant cannot replace their documents quickly because of theft, fire or flood – the applicant must send evidence of the date of loss and the date replacement documents were sought
If an applicant does not fall into one of the exceptions above, a period of overstay will mean that the "10 year clock" will need to restart from the time immediately after the overstay.
Lara has leaved in the UK since 10 May 2007. She has always been lawfully present except for one period of overstay between 4 January and 8 March 2010. Lara's leave expired on 3 January 2010 and she did not submit an application until 7 February 2010, more than 28 days after the expiry of her leave. That application was granted on 8 March 2010.
Lara's has a gap in her lawful residence and need to start the 10 year clock from 7 February 2010. Provided she continues to be lawfully present in the UK until then, she will be eligible to apply under the 10 year rule on 7 February 2020.
20 year rule on long residence
A person who has lived in the UK continuously for 20 years can apply for limited leave to remain in the UK. The 20 year rule on long residence is contained at paragraph 276ADE(1)(iii) of the Immigration Rules. Under the 20 year rule, a person does not have to have lived in the UK lawfully, but simply "continuously".
The definition of "continuous residence" is almost the same as for the 10 year lawful residence route. However, time spent in prison will not break continuous residence. Instead time in prison will simply not be counted towards the period of residence. Time before and after imprisonment can be aggregated to make up the full amount of time.
Alan has lived in the UK since 1 July 1995. He was in prison between 2 August 1997 and 2 November 1997. Alan cannot count the period between 2 August and 2 November 1997 towards the 20 years' residence. However, he can count the time before and after. Alan has spent two years and one month in the UK prior to 2 August 1997; and needs a further 17 years and 11 months to have 20 years’ residence. He will be eligible to apply under the 20 year rule on 2 July 2018, 17 years and 11 months after 2 November 1997.
The only requirements to meet under the 20 year rule are:
- not falling for refusal under Section S-LTR.1.2-2.3 and S-LTR.3.1 of Appendix FM, known as "the suitability grounds";
- making a valid application for leave; and
- having lived continuously in the UK for at least 20 years
Therefore, where an applicant has had 20 years continuous residence in the UK, their application may only be refused on suitability grounds (generally on grounds of public good) or if their application is not valid (for example, they did not pay the correct fee).
If the application is successful, an individual will be granted limited leave to remain for a period of 30 months. It will usually have a condition of "No Recourse to Public Funds" attached to it.
A person will then be eligible to apply for indefinite leave to remain once they have accumulated a period of 120 months (i.e. 10 years) lawful residence. So, under the 20 year rule, it will be 30 years from entry to the UK before the person is eligible to apply for settlement.
Private lifeIt is also possible for a person to be granted leave on the basis of their private life in the UK, even if they have not lived here for 20 years. These rules are also found at paragraph 276ADE(1) of the Immigration Rules.
Seven year residence rule for children and families
Under paragraph 276ADE(1)(iv) of the Immigration Rules, a child who has lived in the UK for seven years might qualify for limited leave to remain, if he or she can show that it would not be “reasonable” for him or her to relocate abroad. Under paragraph EX.1 of the Immigration Rules, an applicant who has a "genuine and subsisting parental relationship" with that child should also be able to make an application for leave to remain as a parent. You can read more about this route in this blog post.
If the application is successful, an individual will be granted limited leave to remain for a period of 30 months. It will usually have a condition of "No Recourse to Public Funds" attached to it.
A person will then be eligible to apply for indefinite leave to remain once they have accumulated a period of 120 months (i.e. 10 years) lawful residence.
The "half of life" rule for under 25s
Immigration Rule 276ADE(1)(v) allow applicants aged between 18 and 24 years old who have spent half of their life living continuously in the UK to apply for leave to remain.
Patrick came to the UK from Ghana with his parents at the age of 4. He is now 20. Half of Patrick’s life is 10 years. Patrick has lived in the UK for 16 years. Patrick has therefore lived in the UK for more than half his life in the UK, and can apply for leave to remain under this rule.
However, applications can still be refused on the basis of too many absences from the UK during that time or on various public good grounds.
If the application is successful, an individual will be granted limited leave to remain for a period of 30 months. It will usually have a condition of "No Recourse to Public Funds" attached to it.
A person will then be eligible to apply for indefinite leave to remain once they have accumulated a period of 120 months (i.e. 10 years) lawful residence.
The "very significant obstacles to integration" rule
Paragraph 276ADE(1)(vi) allows those who do not meet any of the above rules to apply for leave to remain where there would be
very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
There is guidance on what will constitute very significant obstacles in the “Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes” guidance. The extracts below illustrate how high the test is, at least as far as the Home Office is concerned, and how the Home Office is very rarely inclined to grant applications on this basis:
When assessing whether there are “very significant obstacles to integration into the country to which they would have to go if required to leave the UK”, the starting point is to assume that the applicant will be able to integrate into their country of return, unless they can demonstrate why that is not the case.
Where there are no family, friends or social networks in the country of return that is not in itself a very significant obstacle to integration. Many people successfully migrate to countries where they have no existing ties.
Where there is credible evidence that an applicant cannot speak any language which is spoken in the country of return, this will not in itself be a very significant obstacle to integration unless they can also show that they would be unable to learn a language of that country, for example because of a mental or physical disability.
Judges might potentially take a more reasonable view. In the case of Secretary of State for the Home Department v Kamara  EWCA Civ 813 Sales LJ held:
In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.
A person will then be eligible to apply for indefinite leave to remain once they have accumulated a period of 120 months (i.e. 10 years) lawful residence.
Returning residentsIndefinite leave to remain in the UK usually lapses automatically if an individual is outside of the UK for more than 2 years. However, it is possible for individuals whose indefinite leave to remain has lapsed due to an absence of more than 2 years to apply as "returning residents" under paragraph 19 of the Immigration Rules. To have a successful application as a returning resident, an individual must show strong ties to the United Kingdom, and that they intend to make the United Kingdom their permanent home. Factors considered by the Home Office are
- the nature of their ties to the UK
- the extent to which those ties have been maintained during the applicant’s absence
- the length of their original residence in the UK
- the length of time the applicant has been outside the UK
- the circumstances in which they left the UK and their reasons for remaining absent
- their reasons for now wishing to return
- whether, if they were to be readmitted, they would continue to live in the UK
- any other compelling or compassionate factors
Katia is a Bolivian national. She lived in the UK for 25 years, married to a British national, with whom she had 3 British children. She acquired indefinite leave to remain in November 2013. In March 2015, her mother is taken ill and she returns to Bolivia to take care of her. Her husband remains in the UK for work. Her three children, now young adults, also remain in the UK where they are studying at university. The family visits Katia every summer and Christmas. Katia cannot travel to the UK as she cannot leave her mother alone, and her mother has not been able to get a visitor visa to the UK. In June 2018, Katia's mother passes away, and Katia decides to return to live in the UK.Katia's indefinite leave to remain has lapsed as she was absent for more than 2 years, from March 2015 to June 2018. She applies for indefinite leave to remain, and submits evidence of her family life in the UK, the fact that she has lived in the UK for 25 years, the fact that she had to leave because of her mother's ill health, and the fact that she now wants to return to the UK to settle back permanently with her husband. On the basis of her ties to the UK, the reasons surrounding her absence, and her intention to live again in the UK, it is likely that Katia's application will be successful and she will be granted indefinite leave to enter the UK.
[/su_box][post_title] => Private life, long residence and returning residents [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => private-life-long-residence-and-returning-residents [to_ping] => [pinged] => [post_modified] => 2018-08-05 14:49:59 [post_modified_gmt] => 2018-08-05 13:49:59 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/private-life-long-residence-and-returning-residents/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73382 [post_author] => 6452 [post_date] => 2018-07-24 17:07:49 [post_date_gmt] => 2018-07-24 16:07:49 [post_content] => May was a bumper month for immigration and asylum law updates, with 61 posts published on Free Movement. I can’t possibly cover everything, but the highlights include an important High Court intervention on automatic detention and new judicial guidance on immigration bail. From there I move on to the latest case law from the Court of Justice of the European Union and then return to the UK for some developments on the now infamous Windrush cases. Then there are some new cases in the rather different areas of business and asylum and the usual dry but vital procedural changes. [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2018/07/FM-podcast-May-2018.mp3"][/audio] The material is all drawn from the May 2018 blog posts on Free Movement. The main content of the downloadable 32-minute audio podcast follows the (non chronological) order of content below:
DetentionHigh Court throws spanner in the works of automatic detention policy New guidance for judges on granting immigration bail
LuxembourgEntry bans don’t preclude residence card applications, says Court of Justice Can war criminals be expelled or excluded under EU law? It depends Jumping the gun in Dublin III cases Court of Justice to decide whether self-employed women have Saint Prix maternity rights
WindrushNew details on help for the Windrush generation An overlooked weapon in Windrush cases: judicial review
BusinessCarriers’ liability: Ryanair challenges the Secretary of State – and loses No legitimate expectation arises from a chat with the Business Helpdesk
AsylumHumanitarian standards are not the test for a cessation decision Asylum can be refused for general promotion of terrorism Home Office softens line on “no study” restrictions for refugee children
ProcedureUpper Tribunal time limits: clock starts to run when written decisions are *sent* Tribunal caseworker powers expanded in new Practice Statement First-tier Tribunal the place to decide whether out-of-country appeal lawful The limits of consent orders: agreement to consider something irrelevant has no effect Tribunal opens door to awards of costs against Home Office for unreasonable behaviour
NationalityHigh Court remedy for woman embroiled in disputed citizenship claim How quickly could Meghan Markle get British citizenship and what are the requirements? [post_title] => Immigration update May 2018 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => immigration-update-may-2018 [to_ping] => [pinged] => [post_modified] => 2018-07-24 17:07:49 [post_modified_gmt] => 2018-07-24 16:07:49 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=73382 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 73271 [post_author] => 23 [post_date] => 2018-07-22 21:23:59 [post_date_gmt] => 2018-07-22 20:23:59 [post_content] =>
How to make a valid application for different types of EU residence documents[post_title] => Making an EU residence document application [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => making-an-eu-residence-document-application [to_ping] => [pinged] => [post_modified] => 2018-07-22 21:23:59 [post_modified_gmt] => 2018-07-22 20:23:59 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/making-an-eu-residence-document-application/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw )