The Legal 500

The Home Office has recently tightened THE requirements that overseas nationals must meet to qualify for indefinite leave to remain (also known as permanent residency or settlement) and British citizenship. The purpose of these changes is to enforce the government’s view, as stated in its February 2005 paper ‘Controlling our Borders: the Five Year Strategy for Asylum and Immigration’, that permanent migration should be a journey towards being as socially integrated as possible.

Indefinite leave to remain

On 13 March 2006 the Home Office announced that, with effect from 3 April 2006, the qualifying residence period for obtaining indefinite leave to remain in the UK would increase from four to five years. The changes were introduced to bring the requirements for settlement in the UK closer to the requirements for gaining British citizenship, and to bring the UK's practice for the qualifying period in line with the rest of the EU. Additionally, the Home Office seeks to ensure that those applying for permanent residence have demonstrated commitment to the UK by being ‘present, in employment and contributing to the Exchequer for five years, before becoming entitled to settlement', and that settlement is the final stage of an ongoing process of applicants building an attachment to the UK.

The changes have retrospective effect, meaning that applicants who were already ‘in the system' (having been in the UK for some time already) as well as those people coming to the UK after the introduction of the changes, will all now be required to complete a mandatory five-year period of residency before being able to apply for indefinite leave to remain. The impact of this retrospective application of the residency requirement means that large numbers of applicants who were about to complete, or were part-way through, the four-year residency period will need to wait a while longer to complete the new five-year residence requirement.

These changes will affect those people who are already here or who will arrive in the UK under employment-related categories of migration, and those who entered or will enter under the UK ancestry category, including: work permit holders, highly skilled migrants, businessmen, investors, innovators and anyone whose basis of stay is primarily employment-related.

In conjunction with the increased period of residency required for indefinite leave to remain, changes have been introduced to the period of leave granted to applicants under the various employment-related categories of migration, as follows:

• where the rules previously allowed for an initial period of up to 12 months' leave to be granted followed by a subsequent period of up to three years (eg for highly skilled migrants, investors and innovators), the initial grant of leave to remain will now be two years followed by a subsequent period of up to three years;
• work permit holders will be eligible for an initial grant of leave up to the duration of their work permits (ie currently up to a maximum of five years);
• retired persons of independent means and UK ancestry applicants will still be eligible for one single period of leave all the way up to the settlement qualifying period as before (ie five years); and
• highly skilled migrants will now be able to amalgamate continuous time spent in the UK as a work permit holder, highly skilled migrant and/or an innovator when applying for indefinite leave to remain as a highly skilled migrant.

 

The Home Office anticipates that the two-year/ three-year pattern of leave will be advantageous to those applicants setting up in business or entering as investors, innovators and in a self-employed capacity, as a two-year period for establishing oneself is more realistic than the one-year period previously granted.

When calculating the qualifying residence period, the Home Office will calculate from the date of entry into the UK. In practice, this will mean that significant numbers of applicants will need to make further leave to remain applications to bring them up to the five-year residence period before they will be eligible to apply for indefinite leave to remain.

For example, an individual who does not enter the UK immediately after receiving entry clearance as a work permit holder (even if valid for five years) may have to apply for a work permit extension and further leave to remain to ensure they have completed a full five-year period of continuous residency before being eligible to apply for indefinite leave to remain.

Additionally, large numbers of applicants who are already in the UK under the Highly Skilled Migrant Programme (HSMP) or UK ancestry category will need to make applications for further leave to remain in the UK to extend their stay.

For example, an individual who entered under the UK ancestry category in July 2003 will have been issued with entry clearance for a four-year period, valid until July 2007. Under the old system, they would have been eligible to apply for indefinite leave to remain in July 2007. However, under the new system, they will now need to make an application in July 2007 for further leave to remain in the UK to extend their stay. In July 2008 they will complete the five-year residence period and will then be eligible to apply for indefinite leave to remain. There will be a similar scenario for those individuals already in the UK under the HSMP.

As can be seen from the examples above, for those people already in the UK under the affected categories, the retrospective enforcement of the new requirements will result in a significant increase in the number of ‘extension' applications that must be made before applicants fulfil the residency criteria.

Naturalisation

The government believes that those who acquire British citizenship should play an active role in society, both economically and politically, and have a sense of belonging to a wider community. The Nationality, Immigration and Asylum Act 2002 therefore amended the British Nationality Act 1981 to require those seeking naturalisation as British citizens to demonstrate sufficient knowledge of life in the UK as well as knowledge of English. These requirements are viewed as priorities for integration and for enabling applicants for citizenship to understand their rights and duties as British citizens.

These provisions have been implemented in phases, and include the introduction of citizenship ceremonies and the requirement that applicants must demonstrate knowledge of English to the standard of English for Speakers of Other Languages (ESOL) Entry 3.

The Home Office announced the most recent change in August 2005. From 1 November 2005 all applicants applying to naturalise as British citizens have had to demonstrate knowledge of English language and life in the UK, either by passing the ‘Life in the United Kingdom' test, or by successfully completing an English language course which incorporates information about life in the UK.

Both the Life in the United Kingdom test and the citizenship courses have been designed to cover a range of topics which are considered relevant to life in the UK, such as: migration to Britain; the changing role of women; children, family and young people; population; religion and tolerance; geography; customs and traditions; the governmental system; the Monarchy; and formal institutions.

The government hopes that by studying for and taking the test, or participating in an appropriate course, candidates will gain the practical knowledge they need to live in the UK, and positively embrace the diversity of background, culture and faiths that living in modern Britain involves, thus enabling them to take an active part in society.

Life in the United Kingdom test

Applicants who already speak English at or above the ESOL Entry 3 standard will be able to undertake the Life in the United Kingdom test.

The test is based on the information contained in the handbook ‘Life in the United Kingdom: A Journey to Citizenship', published on 15 December 2004 (available from The Stationery Office and bookshops). The test is primarily based on chapters two to four. However, it is recommended that candidates familiarise themselves with the whole handbook.

The test can be completed at any one of the 90 Ufi test centres around the UK. Although it is an on-line test, other formats are available to cater for candidates with disability needs, including an audio option and high-visibility formats. Individual test centres can provide further advice on ‘usability preferences'.

When a candidate arrives at the test centre, they will be required to pay the test fee (currently £34) and provide photographic ID to the test supervisor. Candidates will then be logged on to a computer and will be given time to complete a practice run.

The test contains 24 questions on life in the UK and lasts for 45 minutes. Candidates must score 75% or above to successfully pass the test.

If the candidate passes, they will be given a pass notification letter before they leave the test centre. If the candidate fails, they can retake the test at any time - there is no limit to the number of attempts an individual can make.

The Home Office has established a dedicated website (www.lifeintheuktest.gov.uk), which contains detailed information about the test, including help with identifying an appropriate test centre and preparing for the test, a navigation tutorial and a practice test.  

ESOL with citizenship content courses

Applicants who are not yet at ESOL Entry 3 may instead meet the new requirements by successfully completing English language courses involving materials that incorporate information about citizenship. To meet the requirements for naturalisation, applicants will need to demonstrate that they have successfully progressed from one ESOL level to the next.

These courses will be offered at many further education, adult and community colleges across the UK. Before commencing a particular course, candidates will need to ensure that it is valid for citizenship purposes and that the particular college is accredited.

The length of courses and course fees will vary depending on the level of language skills the candidate already possesses and their ability to learn the course material. Refugees and certain other candidates who have been legally resident in the UK or the EU for at least three years (or 12 months if married to a British citizen) may be entitled to free tuition.

Upon successful completion of the course, candidates will be provided with a certificate (issued by the appropriate awarding body) confirming that the qualification has been gained. This document must then be included in the naturalisation application.

It is possible to take the course at any time, even before a candidate has been in the UK long enough to meet the residency requirements for naturalisation.

Information about the citizenship classes is available at the ‘Life in the United Kingdom' test website (see above), the learndirect website (www.learndirect.co.uk) or by telephoning the learndirect helpline on 0800 100 900.

Discretion to waive requirements

The Secretary of State retains discretion to waive these requirements and grant citizenship, provided all the other relevant criteria are met, to those aged 65 or over or to those who suffer from physical or mental impairment, such that it would be unreasonable to require them to fulfil the language and knowledge of life in the United Kingdom requirements.

By Rachael Mason.

E-mail: rachael.mason@magrath.co.uk.

For more information please visit www.magrath.co.uk.