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January 13

Naturalisation: Generous approach for ILR

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OTB Legal

Naturalisation: More generous approach to the lawful residence / good character requirement for those granted ILR

The Home Office nationality guidance on the good character requirement has been updated and this came into force on 28 June 2022.  This new guidance is much more generous and will allow individuals who have illegally entered the UK or overstayed within the past 10 years to now qualify for naturalisation as long as they hold indefinite leave to remain when they apply to naturalise.

Lawful residence

 Previously, an immigration breach relating to lawful residence would result in an application for naturalisation being rejected. Immigration breaches included overstaying, absconding and illegal entry. The issue of lawful residence was relevant to naturalisation applications in two ways. Prior to 28 June 2022:
  • Immigration breaches in the 5-year period before a citizenship application were normally a reason for refusal of citizenship on the grounds of not meeting the lawful residence requirement set out in section 4 and section 6 (read with paragraphs 1 and 2 of Schedule 1) of the British Nationality Act (BNA) 1981.
  • If the breach was in the 10-year period before a citizenship application, it was normally grounds for refusal of citizenship on the basis that the applicant did not meet the good character requirement.
  • Amended Naturalisation laws

    The law has now been amended, so that a person can be treated as meeting the lawful residence requirement during the 5 year qualifying period without further enquiry where they hold indefinite leave to enter or remain in the UK.

    To align with those law changes, where a person has committed immigration breaches relating to illegal entry, absconding and overstaying, these may be disregarded when assessing good character during the 10-year period prior to the application, but only where all of the following factors apply:

    • The person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022;
    • The person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK;
    • No concerns (for example, regarding the person’s character) have arisen since the grant of indefinite leave to remain which might cast doubt on the decision.

    It remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, in certain applications. These may include but are not limited to:

    • Where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal
    • Where something occurred after the grant of settlement to indicate revocation of that status may be appropriate
    • Applications to naturalise as a British overseas territory citizen

    Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) will still be considered.

    Will this benefit your Naturalisation process?

    The new guidance will benefit many applicants who previously would have had to have waited 10 years after breaching immigration conditions before they could apply.

    If you would like a free consultation to discuss whether you may be able to apply to naturalise as a British citizen, please schedule a free appointment with a member of the Personal Immigration Team.

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