The government's plans for reforming the process whereby a person becomes a British citizen are moving forward, if a little slowly.

Today (26 October 2009) is the last day of the government's consultation on the proposal which it announced in August of 2009, to introduce a points based system at the new "probationary citizenship" stage of the earned citizenship regime which it has brought in with the Borders, Citizenship and Immigration Act 2009, which received Royal Assent on 21 July 2009.

Also the Borders, Citizenship and Immigration Act 2009 (Commencement No. 1) Order 2009 was announced on 12 October 2009.  It is the first such Order relating to the Act.  By this Order various uncontroversial provisions of the Act providing safeguards for the welfare of children and replacing the safeguards previously ensured by the UK Borders Act 2007 come into force on 2 November 2009.  

Other provisions of the Act which make minor adjustments to the regime relating to the fingerprinting of "foreign criminals" and members of their families who are to be automatically deported  and to that relating to the offence of trafficking people for exploitation come into force on 10 November 2009.

It is only on 13 January 2010 that some of the changes heralded in the Bill which is now the Act will become law.  These will include:

•    the entitlement of children of members of the armed forces born in the UK (who are not British citizens) to be registered as British citizens - and the corresponding entitlement of children of members of the armed forces born outside the UK if one of their parents was serving in the armed forces overseas at the time of their birth,

•    the extension of the period within which a minor can be registered or can register as a British citizen to his or her eighteenth birthday,

•    the removal of the bar on acquisition of British Citizenship by descent via the female line - which dates from the British Nationality Act 1948,

•    the requirement that an application to be registered by an adult or young person is not to be granted unless the Secretary of State is satisfied that the applicant is of good character.

Absent from these forthcoming changes are the major reforms to the route to citizenship via naturalisation which the government announced in its Green Paper - "Paths to citizenship" back in May of 2008.  These are contained in Part 2 of the Borders, Citizenship and Immigration Act 2009 (at its sections 39 to 41 and 47 to 49).

These provisions reclassify the leave to remain which a person has in the UK as "temporary residence".  There are to be three subcategories of temporary residence.

The first is "work".  This consists of economic migrants under Tiers 1 (highly skilled workers and also investors and entrepreneurs) and 2 (skilled workers) of the points based system.

The second subcategory of temporary residence is "family" (comprising the family members of British citizens or permanent residents).

The third subcategory is "protection", consisting of those recognised as refugees in the UK and also those who have been granted humanitarian protection.  

Currently people who are here in a work related immigration category have to complete five years' continuous residence in that category (or a permitted mixture of years in that category and another from which they were allowed to switch into the most recent one - amounting to five years' continuous residence in total).  After having completed the necessary five years they become eligible to apply for indefinite leave to remain.

Similarly people granted either refugee status or humanitarian protection become eligible to apply for indefinite leave to remain after they complete five years' continuous residence.  

Family members of British citizens or permanent residents can apply for indefinite leave to remain after completing two years' continuous residence as a family member.  

Indefinite leave to remain constitutes "settlement" as defined in the Immigration Act 1971, where it is said that person is "settled" in the UK if he or she is ordinarily resident there

 "without being subject under the immigration laws to any restriction on the period for which he may remain."

When the "earned citizenship" provisions of the Borders, Citizenship and Immigration Act 2009 become law - instead of being able to apply for indefinite leave to remain at the end of their period of temporary residence migrants will have to apply for "probationary citizenship".

The time an individual migrant spends with probationary citizenship leave will depend first upon whether he or she wishes to become a British citizen or instead to obtain "permanent residence leave".
 
One of the most important things to bear in mind about probationary citizenship is that it is - in sharp contrast to indefinite leave to remain - another form of temporary leave to remain.  Because of this - apart from refugees and those granted humanitarian protection-anyone on probationary citizenship leave will have to be self sufficient-they won't be allowed to claim benefits.

After one year with probationary citizenship leave migrants will be able to apply for British citizenship, but only if they have participated in "active citizenship".  Active citizenship will consist of voluntarily undertaking activities which the Secretary of State for the Home Department will prescribe.

The effect of this is that people in the work and protection subcategories of temporary residence can reduce the number of years it will take them to get to British citizenship (starting from the beginning of their lawful residence in the UK) from the default period of eight years to six years, depending upon their participation in active citizenship.

Those in the family subcategory can reduce the period from five years to three years.   

If they don't participate in active citizenship people who wish to apply for British Citizenship have to spend two years on probationary citizenship leave.

If somebody who has completed the requisite time on temporary residence doesn't wish to apply for British nationality - he or she will be able to apply for permanent residence instead.  But to be eligible to apply for permanent residence status people will have to spend a minimum of three years with probationary citizenship leave.

The proposal in the consultation which ends today is to assess an individual's entitlement to move from probationary citizenship to British citizenship by the application of a points test.   Scoring points will vary according to which subcategory of temporary residence the individual has:

"For family members and refugees, sufficient points to pass the test would be awarded on the basis of their continuing family relationship or protection needs.

For those on the work route, however, a points system would allow for a more flexible test to be applied, with the threshold being levered up or down depending on the needs of the UK. Attributes for which points could be awarded might include:

•    Earning potential;
•    Special artistic, scientific or literary merit;
•    Qualifications;
•    Shortage occupation;
•    English (above existing requirements); and
•    Having lived and worked in a part of the UK in need of further immigration, eg Scotland."

In September of this year the UKBA made it clear that these provisions would not be brought into force until July of 2011.  The announcement was:

•    "The introduction of earned citizenship has been postponed by six months, to give people time to adjust to the new system and to allow more applicants who are already in the United Kingdom to apply under the current rules. Earned citizenship will now be introduced in July 2011."

The government also announced the following transitional provisions for those already in the UK who will have applied for indefinite leave to remain by the time the earned citizenship provisions come into force:

•    "If a migrant has already been given indefinite leave to remain (also known as settlement) on the date when earned citizenship is introduced, they will automatically be considered to be a 'permanent resident'. They will not need to pay or apply for this to occur. They will be eligible to apply for British citizenship under the current rules during the first two years after earned citizenship is introduced.

•    If a migrant has applied for indefinite leave to remain before the date when earned citizenship is introduced, and is subsequently granted indefinite leave to remain, they will be eligible to apply for British citizenship under the current rules during the first two years after earned citizenship is introduced.

•    The government will continue to meet its obligations to migrants who entered the United Kingdom on the Highly Skilled Migrant Programme (HSMP) and had a legitimate expectation that they would be able to apply for and be granted indefinite leave to remain, in accordance with the Immigration Rules that were in place when they applied to the HSMP."

Needless to say these transitional provisions should be exploited by anyone who becomes eligible to apply for indefinite leave to remain in the UK prior to July of 2011, and anyone in such circumstances - or who thinks that they might be - is strongly advised to seek legal advice.

Gherson is ideally placed to provide advice and representation to anyone seeking to take the necessary steps to safeguard their route to citizenship or to permanent residence in the UK.