UK: Changes to British Citizenship pursuant to the Borders, Citizenship and Immigration Act 2009

The Borders, Citizenship and Immigration Act 2009 (BCIA 2009) received Royal Assent in 2009. The BCIA 2009 makes changes to border functions and a number of miscellaneous immigration matters. However, the most significant change it introduces is with respect to citizenship and how foreign nationals may acquire British citizenship in the UK. This article seeks to highlight these changes in some detail.

Introduction

An article on the proposed changes to our current British citizenship and nationality laws¹ would not be complete without considering the broader context in which the BCIA 2009 was passed. In 2005, the Government proposed sweeping changes to the UK's immigration system. This began with the introduction of the Points Based System in 2008, radically changing the ways in which migrants are able to enter and work in the UK, the idea being that only those who would be deemed as fit to contribute to the UK should be allowed to enter.

Parallel to this new system for economic migration, the Government made a myriad of other changes aimed at policing the new system and strengthening UK borders. Changes over the last two years include:

• bringing together the Border and Immigration Agency, UKvisas and Customs to a unified 'UK Border Agency', highlighting a single border force and police-like powers for frontline staff;
• introducing a biometric data requirement for those applying for a UK Visa;
• counting foreign nationals in and out of the country;
• expanding the UK's detention capacity, implementing powers to automatically deport serious offenders;
• introducing compulsory ID cards for foreign nationals who wish to remain in the UK; and
• Introducing large on-the-spot fines for employers who do not make the right checks.

As part of the Government's programme for reform, it came as no surprise that they would consider reforming the path to British citizenship.

The case for change

The Government set out its proposals for change in the Green Paper The Path to Citizenship: Next Steps in Reforming the Immigration System² (the Paper). The Green Paper highlights the reasons for the changes and it is clear that there is an underlying agenda for social as well as immigration reform.

The central principle is that, alongside strengthening the rights of citizenship, citizenship must be earned; anyone who wants to remain in the UK long-term must be willing to "speak our language, obey the law and contribute to the Community."³

Current law

At present, migrants are entitled to apply for indefinite leave to remain (ILR) once they have completed a period of 5 years in the UK in a category leading to settlement (or two years if applying on the basis of marriage/partnership to a British national or someone with ILR).

To naturalise as a British citizen, migrants must have spent a minimum of five continuous years in the UK (three in the case of spouses/civil partners) and have held ILR for a minimum of one of those years. Migrants must also satisfy the current residency requirements, which require applicants to not have spent more than 450 days (270 days for spouses or civil partners) outside the UK in the 5 years preceding the application and not more than 90 days in the 12 months preceding the application.

The New Regime

From July 2011, migrants will need to take the following steps to qualify for British citizenship:

• Temporary Residence for five years;
• Probationary Citizenship (for one-five years);
• Permanent Residence or British Citizenship.

Migrants will also need to demonstrate a far more significant contribution to the UK before being able to progress to obtaining British citizenship. The requirements for progression will include:

1. An English language requirement;
2. Paying tax and becoming self-sufficient
3. Obeying the law; and
4. Joining in with the British way of life by demonstrating "active citizenship".

Until secondary legislation is passed and the UK Border Agency publishes further guidance, it is not clear how the government plans to implement the scheme. Accordingly, we advise all migrants who become eligible to apply for British Citizenship are advised to do so before the new regime is rolled out before July 2011.

Under the new regime there will only be three key routes to citizenship (although in practice a number of other immigration categories will also continue to qualify-see below):

1. Economic /Work Route- for highly skilled and skilled workers who are in the United Kingdom under Tiers 1 and 2 of the points-based system;
2. Family - for family members of existing British citizens and permanent residents; and
3. Protection - for refugees and migrants who have been given humanitarian protection.

Regardless of which category above a migrant falls into, they must pass through the same three stages that they must pass through in order to obtain British Citizenship, specifically: Temporary Residence, Probationary Citizenship and finally, British Citizenship / Permanent residence.

Other Categories

Whilst the Government set out the above as the three key routes to citizenship, it is important to note that in actual fact, a number of other routes to citizenship will continue to exist. Those who are discharged from HM Forces who have completed four years' service; victims of domestic violence who were admitted as a partner of a British citizen or permanent resident; and bereaved partners who were admitted as a Partner of a British citizen or permanent resident and the sponsor has died during the two year probationary period, will all be able to progress directly to permanent residence without passing through a stage of Probationary citizenship. In addition, EEA nationals with Permanent Residence, nationals with a qualifying Common Travel Area (CTA) entitlement, Common Wealth Right of Abode and those with UK Ancestry will all be able to qualify for British Citizenship.

Stage 1: Temporary residence

Once a migrant has obtained valid UK leave to enter and remain in the UK in a category leading to settlement, they will automatically be deemed to be 'Temporary Residents'. For migrants to progress to the second stage (Probationary Citizenship), they must demonstrate that they:

• obey the law;

• pass an English language skills test and Knowledge of Life in the UK assessment;

• meet the residency requirements (spend 5 years in the UK under the work or the protection route, 2 years under the family route), without more than 90 days a year absence in a single year. This differs from the current residency requirements for British citizenship applicants, since under current rules the 450 days absence can be spread across the five year period randomly.

• contribute to the economy (i.e. through demonstrating that they have paid taxes); and

• meet the ongoing requirements, specific to their route. With respect to the Work route, migrants will have to show that they have been in 'continuous employment' since the grant of their previous leave. Under the Family route migrants would have to show that they can support themselves or be supported by their sponsor and that their relationship with their sponsor is still subsisting.

Stage 2: Probationary Citizenship

Probationary Citizenship is set to be the equivalent of the existing ILR route. A key difference however is that unlike ILR it will not entitle migrants to the same benefits that ILR currently offers (such as drawing on public funds and having access to benefits) until migrants become either British citizens or Permanent Residents.

To progress to the final stage, migrants will have to spend between one and five years as a probationary citizen. (After this point migrants would be expected to move to the third stage or leave the UK). The length of time a migrant spends in this category will depend upon whether they wish to

1. applying for British citizenship or permanent residence; and
2. whether they wish to participate in active citizenship.

The Governments intentions where social cohesion and integration are concerned are at the crux of this new concept of active sponsorship, the idea being that those who actively contribute to society should be able to attain citizenship faster than those who do not. Thus, a person who completes the maximum required period of activities could potentially apply for citizenship after one year, or wait three years should they not be inclined to do so. The notion of Active Citizenship is considered below.

Migrants who wish to become Permanent Residents, either by desire or because they are unable to become British citizens due to dual nationality restrictions, must spend a minimum of 3 years as a Probationary Citizen in order to qualify. Migrants who have obtained permanent residency, may remain in the UK indefinitely and will be able to switch into the British citizenship category should they wish to do so.

Before progressing to the final stage, Probationary Citizens will also need to demonstrate that they have:

• obeyed the law during their probationary citizenship. Migrants who receive custodial sentences will be stopped from progressing on the path to citizenship. Those convicted of minor offences will have to wait until their conviction is spent;
• Meet the residency requirements;
• continued to be self-sufficient, with no access to benefits;
• continue to meet the additional requirements specific to their route; and
• satisfy the notion of 'Active Citizenship' (see below), if this is claimed.

Whilst the decision to create a probationary citizenship stage may be a good way to ensure integration and contribution to the UK, it may also arguably be seen as discouraging rather than encourage integration (the label "probationary citizen" infers or creates second class citizenship).

Active Citizenship

As discussed above, migrants at the probationary citizenship stage will only be eligible to qualify for British citizenship after one year (and permanent residence after only three years), if they demonstrate an active contribution to society. Those migrants who do not take part in active citizenship, will be required to wait a further 3 years to qualify for British citizenship and a further 5 years for permanent residency.

The notion of active citizenship is yet to be clarified in any detail and we await further guidance from the Home Office on the specifics. It is anticipated that migrants will need to complete 50 hours of voluntary service and may include initiatives such as volunteer work within a recognised charity or community body, as will activities that:

• advance education or health;

• advance social and community welfare;

• advance heritage, arts, culture or sport;

• benefit the natural environment;

• benefit children, young people, elderly people, disabled people or other vulnerable groups; and/or

• involve mentoring or befriending.

Stage 3: British Citizenship or permanent residence

Migrants who become British citizens or Permanent Residents will have full entitlement to the rights and benefits currently enjoyed by individuals in these categories.

The government recognised that some migrants may be unable to apply for British Citizenship due to restrictions on dual nationality. The Permanent Residence category has been created in order to give these nationals the freedom to retain another citizenship and enjoy the benefits and rights British citizenship offers (which they will have earned) without relinquishing their original citizenship. However, in order to qualify for permanent residence, migrants will have to spend a longer period (minimum 3 years) at the Probationary Citizenship stage. The government's view is that "it is right that those who feel that they cannot become British but instead choose to become permanent residents should have to complete a longer period as a probationary citizen".

Table A

Transitional Arrangements

There will be a transitional period for those migrants who already have ILR when the new regime is introduced. Such individuals will automatically be considered to be 'permanent residents' and will not need to pay or apply for this to occur. Furthermore, they will be eligible to apply for British Citizenship under the current rules during the first two years after earned citizenship is introduced (i.e, until July 2013). Similarly, any migrant whose application for ILR has been submitted to the UK Border Agency before July 2011 and is subsequently given ILR, will be eligible to apply for citizenship under the current rules until July 2013.

Comment

Until secondary legislation and corresponding guidance from the UK Border Agency is issued, it is uncertain whether the government's proposed path to citizenship will negatively affect migrants. The notion of active citizenship may not necessarily be welcome to all and asking this of migrants who have already contributed to the UK socially and economically as a means to obtain citizenship at a faster rate may be difficult in practice. We therefore urge all migrants who become eligible to apply for British citizenship before July 2011 to do so, to ensure that they will not be caught by the tough new rules.

Footnotes

1. British Nationality Act 1981

2. February 2008

3. Ibid, para 33

This article first appeared in The In-House Lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.