The new Borders, Citizenship and Immigration Act 2009
The Borders, Citizenship and Immigration Act 2009 (“the Act”) received Royal Assent on 21st July. Apart from minor changes in relation to children born abroad to British mothers, registration of children as British Citizens and children born to members of the UK armed forces, the main thrust of the new Act is to introduce the concept of “Earned Citizenship”. Having last year introduced the Points Based System for those wishing to come to work in the UK, the Home Office now wishes to extend the principle of earning points for the purpose of being granted citizenship. The Act sets out the framework for the journey towards earned citizenship. It comprises three key stages:
- Stage 1 Temporary Residence
- Stage 2 Probationary Citizenship
- Stage 3 Citizenship or Permanent Residence
Current Requirements to Naturalise as a British Citizen
At present, foreign nationals who have worked in the UK in an employment category can if they wish generally naturalise as British citizens after living in the UK for six years – gaining permanent residence after 5 years and British citizenship after a further year free of any restrictions on their stay. There are certain other requirements, such as not being absent from the UK for more than 450 days over the previous 5 years and 90 days in the year before applying and having passed either the Life in the UK test or the English for Speakers of Other Languages (ESOL) test. There is also a route to citizenship through being the spouse or civil partner of a British citizen. Persons in this category can generally gain permanent residence after 2 years in the UK and citizenship after 3 years, provided that their stay is not subject to any restriction.
Reforms under the New Act
The reforms will remove the current method of naturalising solely by virtue of time spent in the UK in a particular category and replace it with a system of gaining citizenship through earning points. It will also change the length of time a person needs to spend in the UK to gain permanent residence. The reforms are currently subject to a consultation exercise to seek the views of the public and other stakeholders on proposals to build on the earned citizenship framework set out in the Act. The consultation exercise started on 3rd August 2009 and runs until 26th October 2009. The Government proposes bringing the new arrangements into effect in July 2011.
The Work Route
Under the proposals foreign nationals currently working in the UK and their family members will after 5 years move from “temporary residence” into “probationary citizenship”. This will be a further period of temporary leave. The period spent in probationary citizenship will be a minimum of one year and a maximum of 5 years. During this period, they may move to British citizenship swiftly or slowly depending on how many points they earn or to permanent residence as an alternative to citizenship after a minimum of 3 years in the probationary citizenship category. Some individuals may prefer to apply for permanent residence rather than British citizenship because of restrictions on holding more than one nationality in the law of their country of origin. It will still be possible to switch from permanent residence to citizenship at a later date. So, if an individual decides to take the permanent residence route, it will take 8 years to achieve this under the new system as opposed to the current 5 years.
The government wishes to encourage all migrants who qualify to stay in the UK permanently to take full British citizenship. This is why they have structured the new arrangements so that it will take longer to qualify for “permanent residence” (minimum 8 years) compared to British citizenship (minimum 6 years).
The Family Route
Family members of British Citizens and permanent residents will move from temporary residence into probationary citizenship after 2 years. Again, the period spent in probationary citizenship will be a minimum of 1 year en route to citizenship and a minimum of 3 years to gain permanent residence.
The Points System
Initially 20 points will be required to move from “temporary residence” to “probationary citizenship” but the UK Border Agency (UKBA) has indicated that this points threshold may be increased at a future date. The government believes that a points system will provide greater flexibility to take a decision to raise or lower the threshold for settlement depending upon the needs of the country and economy at any given time.
For those qualifying via the employment route, these points would initially be scored by meeting the Immigration Rules (10 points) and by passing the Life in the UK test or ESOL test (10 points). Meeting the Immigration Rules would mean in the case of a migrant worker being self-sufficient and still in work.
If it is decided to raise the points threshold for those using the employment route to move into probationary citizenship, ways of scoring the additional points required might be for instance on the basis of earnings level (£24,000 - £34,999 = 5 points, £35,000 - £49,000 = 10 points etc.) or academic qualifications obtained in the UK (Bachelor degree = 5 points, Masters = 10 points etc.) or other criteria such as working in a location in need of increased migration e.g. Scotland (5 points). The UKBA is currently seeking feedback on these proposals.
For those here on the basis of a family relationship, e.g. spouse or civil partner of settled person, the relationship would still have to be subsisting, in which case 20 points would be scored. Under the proposals it appears that unmarried partners of settled persons, who are not eligible to naturalise as British citizens under the current arrangements, will be able to qualify via the family route but we await further clarification on this point. It will also be necessary for those qualifying via the family route to score 10 points by passing either the Life in the UK or the ESOL test.
It will be mandatory to pass either the Life in the UK or the ESOL test to achieve probationary citizenship. Those who fail the test will be required to take it again. Those who are convicted of a crime attracting a custodial sentence will normally be refused probationary citizenship, permanent residence or citizenship and those who commit minor crimes will normally be unable to obtain citizenship until their convictions are spent (this is generally 5 years for offences which attract a fine, e.g. motoring offences).
Achieving Full Citizenship
It is proposed that it will be necessary to pass a further, more challenging Life in the UK test or ESOL test to achieve full British citizenship. The route to full citizenship will be accelerated for “Active Citizens” who may achieve full citizenship after only one year in the probationary citizenship stage by undertaking activities such as: formal volunteering; giving unpaid help to groups or clubs to benefit others or the environment; being a school governor or participating in trade union or party political activities etc. It is proposed that local authorities would monitor these active citizenship activities and confirm to the UKBA that they had been performed. The types of activities which will count towards active citizenship have not yet been finalised.
Transitional Arrangements
Those who have already made an application for citizenship will have their application decided under the current arrangements. Additionally, those who currently have indefinite leave to remain (ILR) in the UK or who have been granted ILR by the date of commencement (a date in July 2011 yet to be announced) or who have applied for ILR before the date of commencement and are subsequently granted ILR will have their applications for citizenship decided under the current arrangements provided that they apply for citizenship within two years of commencement.
Public Consultation
Anyone may comment on the proposals and a copy of the consultation document is available on the UK Border Agency’s website - click here
A document summarising the Government response to the consultation will be published within 3 months of the closing date of the consultation and will be available on the UKBA’s website.
For more information on the new Borders, Citizenship and Immigration Act 2009 contact
Marian Dixon or
Peter Dixon in the business immigration team.
This article was first published in Business Immigration eBulletin September 2009
