In the past two years, there has been a vast increase in applications for Naturalisation as many people are concerned about Brexit and their rights to remain in the United Kingdom once the United Kingdom has left the European Union. In this article, we will look at the requirements for Naturalisation, not only for those who are impacted by Brexit but also for any applicant who wishes to become a British Citizen.
The requirements for Naturalisation can be found in the British Nationality Act 1981. All applicants are required to show that they are of full age and that they have capacity. The former can be proven by providing the original passport of the applicant. In terms of proving capacity, the Home Office have defined this in the Nationality Policy: Naturalisation as a British citizen by discretion which provides that:
“the majority of applicants will meet this requirement and therefore you must always consider an application from the position that the requirement is met unless there is something to suggest otherwise, such as a report from a Referee or doctor.”
Applicants are also required to show that they meet the knowledge of life and language in the United Kingdom requirement. All applicants are required to complete the Life in the UK test to show that they have sufficient knowledge of life in the United Kingdom. The language requirement can be satisfied if the applicant has achieved an English language certificate at the prescribed level, issued by an approved college. Alternatively, those with a degree that was taught in English will also meet this requirement (provided the Degree is deemed to be at the prescribed academic level); the requirement will also be met by those from English speaking countries which are recognised as such by the Home Office. The language requirement is the same for Indefinite Leave to Remain applications so many applicants would have already met this requirement before they apply for Naturalisation. EEA nationals are not required to satisfy the English language requirement and Life in the UK test when submitting their application for Permanent Residence status and they may therefore need to take steps to meet this requirement before proceeding with their Naturalisation application. Most English language certificates are only valid for two years; if this period has already lapsed, applicants could be required to undertake a new test.
There is also a requirement that applicants must illustrate that in the event of being granted Naturalisation, they intend to make the United Kingdom “his home or principal home”. We have increasingly seen applications being refused on the basis that applicants have incorrectly stated that they wish to make a different country their home once they have been granted Naturalisation. It is vital that applicants state on the application form that they wish to make the United Kingdom their home as failure to do so will result in a refusal of their application.
The residence requirement for Naturalisation is often the most problematic for applicants. Applicants are required to show that they have spent five continuous years in the United Kingdom and that one of those years was after obtaining settlement. They must also declare any absences from the UK and there is a limit on how many days can be spent outside the UK during the five years qualifying period.
Finally, applicants are also required to demonstrate that they are of good character. The good character requirement gives the Home Office a wide discretion to refuse applications where the applicant is deemed not to be of good character. This can be for any number of reasons but most commonly criminality, financial impropriety or breach of the immigration laws.
Good character itself is not defined by Statute. The Home Office published the Good Character requirement Guidance on 14 January 2019. The guidance applies to all applicants who are applying for British citizenship over the age of 10 years.
A very common problem is where an applicant was previously an overstayer, but his/her leave was subsequently regularised and eventually he/she obtained settled status. The Home Office’s policy on illegal entry and overstaying was expanded in 2014, where it was confirmed that any periods of overstaying occurred in the 10 years period prior to the Naturalisation application would be taken into consideration with regard to good character. This remains to be the case. The new guidance does however refer to Article 31 of the Refugee Convention which requires States not to impose penalties on refugees on account of their illegal entry or unauthorised presence in the country provided that they present themselves without any delay to the authorities and have shown good cause for their illegal entry or presence.
Applicants should also be aware that NHS debts over £500 and unpaid Home Office litigation debts amount to evidence of bad character. This provisions already exist in the Immigration Rules as reasons to refuse a visa, but they are now also mirrored in the citizenship guidance.
The good character guidance has been extended over the years and many factors including police cautions, NHS debt and Home Office litigation will be taken into consideration. The new guidance provides some clarity on the circumstances, but it has not by any means simplified the rules. Applicants need to be cautious when making their application to ensure that they make full and frank disclosures to the Home Office and when necessary, representations should be made to provide an explanation for any possible implications of bad character.