Further tests for naturalisation beyond the Borders, Citizenship and Immigration Act

The United Kingdom Borders Agency (the UKBA) has issued a bulletin regarding the Borders, Citizenship and Immigration Act 2009 which received Royal Assent on 21 July. The bulletin indicates that further requirements beyond those set out in the Act will be imposed on people who wish to naturalise as British Citizens.

As the UKBA says in its bulletin the most controversial provisions of the Act - which are contained in its Part 2 (sections 39 to 41) and introduce earned citizenship - did not come into force with the passing of the Act itself. Instead the Secretary of State must make an appropriate order for their commencement. The bulletin indicates that the Agency does not intend that they will come into force until the summer of 2011. 

The concept of earned citizenship originated with the Government's Paper entitled Paths to citizenship - next steps in reforming the immigration system - which was published in May of 2008. 

Essentially the Act amends the qualifying provisions set out in Schedule 1 of the British Nationality Act 1981 whereby a person can become naturalised in the UK. Since the current legislation will remain in force until 2011 - it's helpful to examine what these current requirements are. 

People seeking naturalisation must have been in the UK for five years without any absences of more than 450 days. People who are married to British Citizens or who are their civil partners can apply for naturalisation after they have lived in the UK for three years, without any absences of more than 270 days. (The Secretary of State for the Home Department has a discretion to overlook excesses of these absence periods).  

When the earned citizenship provisions come into force it will take eight years for people applying for naturalisation otherwise than on the basis of their relationship with a British Citizen, and five years for those who are relying on such a relationship. 

However these periods can be reduced from eight years to six years and from five years to three years, if the applicant meets an activity condition. 

The new paragraph 4A of the British Nationality Act 1981 describes this condition as follows:

(5) The applicant meets the activity condition if the Secretary of State is satisfied that the applicant
(a) has participated otherwise than for payment in prescribed activities; or
(b) is to be treated as having so participated.

 

There will be regulations setting out what activities are prescribed and what in particular has to be done to meet the condition. 

The UKBA's recent bulletin indicates that the activity condition is to be supplemented by a further points assessment test comparable with the points based system it has now comprehensively implemented in respect of those seeking to enter or remain in the UK to work or to study.  It states:

The new points based test for citizenship - an extension of the already successful Australian-style points based system - will award migrants points for building up different attributes and skills. Proposals being launched in the new consultation would see people rewarded for economic contributions, skills and English language proficiency above the level already expected. Points could be removed and citizenship withheld or delayed for those breaking the law or committing anti-social behaviour.

Anyone considering applying for settlement in the UK, and who is understandably already confused by the changing legislation relating to citizenship and nationality would be well advised to seek professional legal advice. Although so much of the government's plans remains unimplemented - the likelihood that the future success or failure of such an application will depend upon what the applicant is doing and has been doing in the past at the time they apply seems inevitable.