The Rights to British Citizenship

Question A I am asked to advise a number of parties in relation to their right to British citizenship. From the statement of facts, it is clear that all the parties are related by way of family to a British father, Andrew. In relation to his wife Barbara, a Canadian national, the most appropriate course of seeking British citizenship would be to seek naturalisation as a British citizen in accordance with section 6 and schedule 1 of the British Nationality Act 1981. Under these legislative provisions, there are a number of requirements that one must meet in order to be naturalised as a British citizen. Additionally, these requirements are different for Barbara’s circumstances, as she is seeking naturalisation as the wife of a British citizen. These include:

• Being of good character;
• A sufficient knowledge of English;
• A knowledge of life in the United Kingdom;
• Being the husband/wife/civil partner of a British citizen at the time the application was lodged;
• A requirement of UK residency for three years preceding the date of the application (and not being outside the UK for 90 days during this period).[1]

Upon analysis of these stringent legislative requirements, it is clear that Barbara could not be afforded naturalisation as a British citizen, as Barbara does not satisfy the three-year residency requirement. Additionally, Barbara does not meet the Crown service requirements which would allow for an exemption from the residency requirement rule.[2] Therefore, in order to be naturalised as a British citizen in this regard, one must already be living legally in the United Kingdom under some form of existing entry clearance, and then seek to become naturalised as a British citizen while still in the UK. There is no scope under section 6 of the British Nationality Act 1981 to seek exemption from this rule, and reliance upon earlier legislation, due to the marriage occurring prior to commencement of the 1981 Act. In regards to Catherine, Andrew’s daughter born in the UK in 1978, reliance must fall upon the Immigration Act 1971, given that Catherine’s birth pre-dates the commencement of the British Nationality Act 1981.[3] As such, it is important to consider the relevant provisions from the 1971 Act that concern Catherine’s circumstances. The 1971 Act mainly refers to the ‘right of abode’, and specifies that: All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.[4] Additionally, the 1971 Act also specifies the substantive requirements to be granted the right of abode, and says: A person is under this Act to have the right of abode in the Isle of Man if- (a) he is a British citizen…[5] While this may seem to be an initially problematic and contradictory set of provisions, it is important to note that, prior to the commencement of the British Nationality Act 1981 in 1983, birth within the UK was sufficient in itself to grant UK citizenship onto a person. It was not until the 1981 Act was introduced that the rules relating to British citizenship became more challenging and restrictive. Therefore, due to the absence of any legislative provisions to the contrary, it can be concluded that Catherine can be registered as a British citizen, due to her being born in the UK prior to the commencement of more restrictive legislation in the early 1980s. In regards to Andrew’s second daughter, Deborah, who was born outside the UK in 1983, one must turn to the provisions of the British Nationality Act 1981. Given that Deborah is no longer a minor, and must now make an application for British citizenship of her own accord, she is unable to rely on the provisions relating to children born outside the UK.[6] As such, she must rely on the provisions relating to acquiring British citizenship by descent, which are outlined in section 2 of the 1981 Act. The relevant legislation reads: 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— (a) is a British citizen otherwise than by descent…[7] Given that it has been established that Andrew is a British citizen otherwise than by descent (i.e. he was born in the UK), it is clear that Deborah will be granted UK citizenship upon application. Question B There are processes that exist which allow a person, who has legally been in the United Kingdom for long enough, to apply to become a British citizen. The processes available differ depending on one’s circumstances. It would appear that, based upon Rizwan’s circumstances, the most appropriate method of applying to become a British citizen would be to seek naturalisation. This process is governed by the British Nationality Act 1981. Under these legislative provisions, there are a number of requirements that one must meet in order to be naturalised as a British citizen. These requirements are significantly different to those required of someone who is seeking naturalisation as a husband/wife/civil partner of a British citizen. These include:

• Being of good character;
• A sufficient knowledge of English;
• A knowledge of life in the United Kingdom;
• An intention to maintain their home in the United Kingdom;
• A requirement of UK residency for five years preceding the date of the application.[8]

Obviously the first hurdle for Rizwan to overcome would be to meet these requirements. In terms of the residency requirement, it would appear that Rizwan meets this criterion, as the facts indicate he has already been in the UK for five years on a work permit. This is perhaps the most stringent criteria to overcome in the immigration process, and it appears that Rizwan passes it quite considerably. The remaining requirements seem to be more of a subjective determination to be made by an immigration official, such as being of sound mind and character. Perhaps the other most daunting task for Rizwan to overcome in order to seek British naturalisation would be to show that he has sufficient knowledge of life in the UK so as to live freely here. This knowledge is tested by way of a written test, which is presented in English. Generally, applicants must demonstrate that they are proficient at speaking and writing English at a certain standard before they will be permitted to sit the test, either by presentation of a certificate attesting to ESOL Level 3, or by undertaking a course to attain same.[9] The test consists of 24 questions which are drawn from information presented in the publication “Life in the UK: A Journey to Citizenship”, available from the Stationary Office.[10] Thus, Rizwan would need to be proficient in the information contained in this publication before sitting the test, in order to maximise his chances of passing the test first time. Additionally, Rizwan would be responsible for paying the £34 fee for the test.[11] Upon successful completion of the test, Rizwan will receive a pass notification letter which he can then attach to his application for British naturalisation on form AN, as proof that he has passed the knowledge of UK life test. The test should be completed before a formal application is submitted. In summary, the procedures for Rizwan applying to become naturalised as a British citizen are relatively straightforward. It is assumed that, as Rizwan has five years of working experience, he will have some understanding of the English language. Additionally, he may also have some practical knowledge of life in the UK, which will help come time to undertake the UK life knowledge test. There is every likelihood that Rizwan’s application will be approved, provided he adheres to the strict procedures of applying to do so. Question C A question has been raised as to whether British immigration law takes sufficient account of a British resident’s wishes to maintain their family life in the UK. In order to make such an assessment, it is fundamentally important to consider the relevant legislative provisions relating to the issue. Firstly, it is important to note that, in order to become naturalised as a British citizen where one has no marital link to the UK, one must prove that there is sufficient intention to maintain their home in the United Kingdom.[12] This represents not so much a wish but a requirement. However, if one was to attempt to naturalise as a British citizen, with a marital link to the UK (e.g. husband or wife), the standards are a little more relaxed. There is no specification for a requirement that says one must maintain their home in the UK after naturalisation,[13] thus indicating a gap in the law in regards to this. Essentially, it appears that the law is significantly more restrictive on those who are seeking naturalisation who come from overseas, without a UK link, rather than those that have effectively married into the UK. While people in either circumstances may already have entry clearance and, possibly, indefinite leave to remain in the UK, the law does take into account an foreign British resident’s wishes to maintain family life in the UK, whereas it does not for those that have (effectively) already started a family with a UK spouse. The above mentioned scenarios highlight key comparative examples of particular times where the UK immigration law can conflict in relation to taking into account one’s wishes to maintain a family life in the UK. It is also important to consider relevant provisions of the Immigration Rules in order to make a more substantive determination. Perhaps one of the most key provisions in the Immigration Rules on this issue is in relation to spouses who intend to enter and remain in the UK with their partner. Under Rule 281(iii), there is a requirement that the two persons who seek to have the spousal status approved for entry will permanently live together following the approval of such a status. It also prescribes for the marriage to be “subsisting”,[14] in other words that it continues to flourish and work. This promotes the idea that the two people will maintain a family life in the UK. In summary, while the immigration law can be conflicting in some circumstances, it is clear that it does take sufficient account of a person’s wishes to maintain family life in the UK upon being granted leave to remain. The law in fact requires, in many circumstances, that people do so in order to be continually granted leave to remain in the UK, or even granted entry at all in some instances. It would be difficult to contend that the law does not provide for maintenance of family life based on the few examples (of many) that exist in UK immigration law. Bibliography Books

• Clayton, G, Textbook on Immigration and Asylum Law (2004), London: Oxford University Press
• Jackson, D.C., and Warr, G (eds), Immigration Law and Practice (2001), London: Sweet and Maxwell
• Karatani, R, Defining British Citizenship: Empire, Commonwealth and Modern Britain (2003), London: Frank Cass
• MacDonald, I.A., and Webber, F (eds), Immigration Law and Practice in the United Kingdom (2005, 6th ed), London: LexisNexis Butterworths

Legislation

• British Nationality Act 1981
• Immigration Act 1971

Other Sources

• Border and Immigration Service, ‘Knowledge of Life in the UK’ (2007) <https://www.ind.homeoffice.gov.uk/applying/nationality/knowledgeoflifeintheuk> at 18 April 2007

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Footnotes

[1] British Nationality Act 1981, sch 1 paras 3-4. [2] British Nationality Act 1981, sch 1 paras 3-4. [3] British Nationality Act 1981, s 1. [4] Immigration Act 1971, s 1(1). [5] Immigration Act 1971, s 2(1). [6] British Nationality Act 1981, s 3. [7] British Nationality Act 1981, s 2(1). [8] British Nationality Act 1981, sch 1 paras 5-6. [9] Border and Immigration Service, ‘Knowledge of Life in the UK’ (2007) <https://www.ind.homeoffice.gov.uk/applying/nationality/knowledgeoflifeintheuk> at 18 April 2007. [10] Ibid. [11] Ibid. [12] British Nationality Act 1981, sch 1 para 5. [13] British Nationality Act 1981, sch 1 para 3. [14] Immigration Rules, rule 281(iii).

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