After some time in the UK, it’s common for some people to consult a British citizenship lawyer with a view to obtaining naturalisation as a British citizen. For those considering naturalisation, there are, as you might expect, a number of eligibility requirements to satisfy. In this blog, we look at the question of ‘lawful residence’ which top London immigration lawyers often have to consider in the context of naturalisation and British citizenship applications on behalf of their clients.
naturalisation – becoming a British citizen
The act of naturalisation means that the individual obtains British citizenship. The UK allows dual nationality, so naturalising as a British citizen doesn’t mean you must relinquish your original citizenship. However, some countries do not allow dual nationality, so it’s worth checking whether you will have to give up your other nationality to become a British citizen. Once naturalised, you can live and work in the UK free from Immigration controls. You can apply for a British passport and live in the UK with access to all the support that UK government offers in terms of health and welfare, education and housing. For more information on the advantages of British citizenship, contact an Immigration solicitor who specialises in naturalisation applications.
Eligibility for naturalisation
The British nationality Act 1981, section 6 provides the basis for naturalisation. As you might expect, there are a number of eligibility criteria to satisfy of which lawful residence is only one. The key requirement is that the individual must already have spent a certain amount of time in the UK before applying for naturalisation. For the spouse/civil partner of British citizens, this is 3 years; for anyone else, it’s 5 years. Other requirements for naturalisation as a British citizen include
- That the residence is lawful;
- That the periods of residence are only interrupted by absences that are permitted, and for the permitted length of time;
- That the individual applying for naturalisation was in the UK 5 years before the application date; and
- The individual has no ‘Immigration restrictions’ – in practice, this means he or she will have Indefinite Leave to Remain or permanent residence. In future, this may also include EU citizens holding settled status under the post-Brexit arrangements for EU citizens.
The lawful residence requirement relates to the individuals’ Immigration status during the 3 or 5 years in the UK that they are relying on as their period of residence. Your UK Immigration lawyer will be able to discuss how this will apply to you and your situation, but the key thing to remember is that any breaches of Immigration law – and any periods when you are in the UK in breach of UK immigration law – will not count towards the residence requirement. The details of being in breach of the UK’s Immigration laws are explained in detail in the British nationality Act at section 50A. On the other hand, if you have the right of abode in the UK, or leave to enter or remain, you will not be in breach. Irish citizens who come to the UK on a ‘local journey’ from the Republic of Ireland are here lawfully and do not breach Immigration laws, as are EU and EEA citizens in the UK who do not formal ‘leave’ to be in the UK. Any leave you do have to be in the UK will automatically be extended if you have made a valid application to extend your leave in time – so you will have ‘lawful residence’ for the period until you receive a decision on that application, or while an appeal can be brought or is pending.
Discretion to waive ‘lawful residence’ requirement
While some of the eligibility requirements for naturalisation are fixed, and there is no discretion to waive them, the requirement of lawful residence can be viewed flexibly. Of course, someone who deliberately breaches UK immigration law is unlikely to find themselves treated sympathetically by Home Office officials, but in cases where the breach of UK Immigration laws has been unknowing or outside the individual’s control, there is a discretion there to waive the breach.
According to Home Office guidance, this discretion can be exercised for example if the applicant for naturalisation was denied access to renew his or her Immigration status due to domestic violence, or the individual arrived in the UK clandestinely but (usually within a month) reported to Immigration authorities to regularise his or her status. Discretion can also be exercised in favour of someone who was the subject of an incorrect refusal of refugee status or leave to remain, or in favour of a minor whose breach of immigration rules was down to the actions of their parents. For individuals who obtain Indefinite Leave to Remain after they have been in the UK unlawfully for 14 years, only residence once ILR has been granted will count towards lawful residence.
While there are many advantages to naturalisation as a British citizen, the process can be complex and the requirements detailed. Take advice from the best immigration solicitors you can find in order to be assured of a successful outcome!
OTS Solicitors have extensive experience in successful British citizenship and naturalisation applications and will be pleased to advise and support you if you wish to take this step. To speak with one of our top London immigration solicitors, in confidence, about your application, please call us today on 0203 959 9123.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Monday, 01 October, 2018