Commentary Acquisition of British citizenship by naturalisation Section 40: Application requirements: family members etc.
152.Section 40 amends the requirements to be met by those applying for naturalisation under section 6(2) of the BNA 1981.
153.Section 40(1) and (2) amend section 6 of the BNA 1981. Section 40(1) removes the requirement in section 6(2) that an applicant must be married to, or the civil partner of, a British citizen, and replaces it with a requirement that an applicant must have a relevant family association. Section 40(2) inserts new section 6(3) and (4) which provide that a person (“A”) has a relevant family association if A has a connection of a prescribed description to a person of a prescribed description. “Prescribed” means prescribed by regulations made under section 40 of the BNA 1981 (see section 50(1) of that Act). The regulations may, for example, prescribe that a person has a relevant family association if the person is married to, or the civil partner of, a British citizen or a person with permanent residence leave in the UK. The new section 6(4) provides discretion in individual cases, for the purposes of section 6(3), to treat a person as having a relevant family association on the date of application even though the association ceased to exist before that date.
154.Section 40(3) replaces paragraph 3 of Schedule 1 to the BNA 1981. This sets out the requirements that an applicant needs to meet in order to be naturalised as a British citizen under section 6(2) of that Act. By virtue of the new paragraph 3(1), applicants will still be required to be of good character – a person can be refused on the basis, for example, of a criminal conviction or failure to pay taxes. They will also still be required to have a sufficient knowledge of English, Welsh or Scottish Gaelic, and have a sufficient knowledge about life in the UK. New paragraph 3(2) sets out the requirements relating to the applicant’s presence in the UK during the qualifying period. These are largely the same as for applicants applying under section 6(1) of the BNA 1981, except for the additional requirements that an applicant must have had a relevant family association for the whole of the qualifying period, as well as a qualifying immigration status for the whole of the qualifying period; and that the applicant must have either probationary citizenship leave or permanent residence leave based on a relevant family association, or a qualifying CTA entitlement, or a Commonwealth right of abode, on the date they apply for naturalisation.
155.New paragraphs 3(3) and (4) relate to the applicant’s intentions once naturalised. It is a similar requirement to the one for applicants applying under section 6(1), although it recognises that applicants under section 6(2) may intend to accompany their family member overseas in Crown or other service rather than undertake such service outside the UK themselves.
156.New paragraph 3(5)(a) introduces a new requirement that, where an applicant is applying on the basis of being the partner of a British citizen or someone with permanent residence leave, the applicant must have been the partner of the same person throughout the qualifying period in order to meet the requirement in paragraph 3(2)(c)(i) to have a relevant family association for the whole of the qualifying period. In addition, paragraph 3(5)(b) provides that, where the applicant’s qualifying immigration status is qualifying temporary residence leave, probationary citizenship leave or permanent residence leave, the applicant must have had leave granted on the basis of that partnership (and not granted on the basis of some other relevant family association with the British citizen or permanent resident) in order to meet the requirement in paragraph 3(2)(c)(ii) to have had a qualifying immigration status for the whole of the qualifying period. The additional requirement in paragraph 3(5)(b) does not apply where the applicant’s qualifying immigration status is a qualifying CTA entitlement or a Commonwealth right of abode.
157.New paragraph 3(7) provides that, for the purposes of paragraph 3(5), the relationship between the applicant and the applicant’s partner need not be of the same description throughout the qualifying period. So, an applicant could have started their qualifying period as the unmarried partner of a British citizen, then married that same British citizen, and still meet the requirement to have been the partner of a British citizen throughout the qualifying period.
158.Section 40(4) replaces paragraph 4 of Schedule 1 to the BNA 1981. These amendments relate to the discretion the Secretary of State has in the special circumstances of a particular case to waive various requirements for naturalisation for applicants applying under section 6(2) of the BNA 1981 or to treat them as fulfilled. These are similar to the discretionary powers in paragraph 2(1) for applicants applying under section 6(1), but they also contain a discretion which could be used in the special circumstances of a particular case where a relevant family association has broken down. Section 40(4) maintains the existing power to waive relevant requirements if the applicant is applying on the basis of a relationship with a person in Crown service or other service to which section 2(1)(b) of the BNA 1981 applies who was recruited for that service in the UK.
159.Section 40(5) inserts new paragraph 4A into Schedule 1 to the BNA 1981. This defines qualifying immigration status for the purposes of paragraph 3. This is defined in a similar way as for applicants applying under section 6(1), except that it provides that where the qualifying immigration status is qualifying temporary residence leave, probationary citizenship leave or permanent residence leave, that leave must have been granted on the basis of the applicant having a relevant family association; and the list of qualifying immigration statuses does not include temporary or permanent EEA entitlements.
160.New paragraph 4A(3) provides that an applicant need not have held the same qualifying immigration status for the whole of the qualifying period nor, subject to paragraph 3(5) (that those applying as a partner must have been the same person’s partner and, if necessary, had leave granted on that basis, throughout the qualifying period), need they have had the same relevant family association throughout the qualifying period. New paragraph 4A(4) provides that where an applicant under section 6(2) of the BNA 1981 counts more than one grant of qualifying temporary residence leave, probationary citizenship leave, or permanent residence leave towards the qualifying period, the grants of leave need not (subject to paragraph 3(5)) be based on the same relevant family association. In cases where paragraph 3(5) does apply (because an applicant is applying as the partner of a British citizen or person with permanent residence leave), the grants of leave need not be based on the same description of relationship as partners. This would cover, for example, an applicant who started their qualifying period with qualifying temporary residence leave as the unmarried partner of a British citizen but the applicant then married that partner and completed the qualifying period with probationary citizenship leave granted on the basis of being that person’s spouse. In this case, paragraph 4A(4) allows the applicant to count both periods of leave towards the qualifying period despite the nature of the relationship changing (although the applicant has had leave on the basis of the same partnership throughout).