Borders, Citizenship and Immigration Bill – Part 2, Citizenship

The Bill contains provisions to change the way in which migrants in the UK may become as British citizens (naturalise).

The Bill is expected to be considered by MPs next month, so now is an important time for writing to your constituency MP, or (better) visiting him or her at the MP’s surgery, in order to persuade MPs of changes to the Bill that should be made.

Part 2 of the Borders, Citizenship Immigration Bill contains provisions to introduce changes to the current path to citizenship (i.e. the way in which migrants in the UK may naturalise as British citizens).

The current path to citizenship is in three stages:

• a period of limited leave (temporary residence), during which migrants cannot access certain welfare benefits and services (those recognised as refugees or granted another protection status can, however, access benefits and services)
• a period of indefinite leave to remain (permanent residence)
• British citizenship

The proposed new path to citizenship will also be in three stages:

• a period of temporary residence (during which the current exclusions from benefits and services will continue to apply)
• another period of temporary residence called ‘probationary citizenship’ (during which the exclusions from benefits and services will continue to apply)
• British citizenship or permanent residence

In addition to the new structure, further discrete changes are proposed and new concepts or terms are introduced. The following are key points and concerns in relation to the proposed changes:

1. The qualifying periods (i.e. the time it takes before someone can qualify to apply for British citizenship or permanent residence) are changing. Currently, the relevant qualifying periods are fixed and are clear. In future they are to become variable, and hence less predictable.

1. The qualifying period for permanent residence will be 2 years longer than the qualifying period for British citizenship (as compared to now, where the qualifying period is one year shorter for indefinite leave to remain). For those who do not wish to (or cannot – e.g. because their current citizenship precludes this) naturalise as British, this will significantly extend the period during which they will be excluded from benefits and services. The Government says this is to encourage migrants to become British rather than settling for permanent residence. However, there is no evidence that extending the qualifying period for permanent residence will provide any greater encouragement for people to become British citizens (which could instead be achieved by reducing the very high fees). It should not take longer to get to permanent residence than citizenship.

1. The qualifying period (whether for British citizenship or permanent residence) may be extended by up to 2 years if specified voluntary work is not done. The Government has provided no information about what voluntary work will be specified, how much will have to be done or over what period. Some people (e.g. those with carer responsibilities) may not be able to do voluntary work. There is also a risk that this requirement (called ‘active citizenship’) will require extensive bureaucracy, cause delays, allow for exploitation and discrimination. It is not clear how or whether community or voluntary groups will be supported (including funding) to make volunteering available; and there is a risk that the value of volunteering is undermined by an approach which effectively compels people to volunteer rather than enables volunteering. Voluntary work should be voluntary. Government should encourage and support people to be able to undertake voluntary and community work. Government should not require it; and should not introduce some new bureaucracy that will leave people at risk of discrimination or exploitation.

1. Uncertainty and serious risks face people on the path to citizenship because there are various triggers that will require someone to begin the qualifying period all over again:

1. 1. Someone who is absent from the UK for more than 90 days in any twelve months period faces having to start the qualifying period. This includes where someone has nearly completed the qualifying period. Someone may have to be absent for more than 90 days (e.g. because their employer requires them to work overseas for a period; or they need to return to their home country where a sick or dying relative requires attention). If this happens, the proposals will require the person to start the qualifying period from the beginning. If this happens when someone is nearly at the end of the qualifying period, the result could be that the person could take as long as 15 or more years to complete the qualifying period. Through all this time access to benefits and services will be denied. The current arrangement whereby absences can be averaged out over the qualifying period should be retained. This allows for flexibility where extended absences cannot be avoided.

1. 1. Someone who cannot meet the new ‘continuous employment’ requirement faces the same problem of having to start all over again (or simply being excluded from citizenship). This is to apply to those who have been granted limited leave (temporary residence) in order to work. However, the immigration rules already have requirements that migrant workers must continue to be here for the purpose of work, but allow time for someone who loses or leaves a job to find another job. The new requirement could require someone who is out of work for any, even a very short, period of time to start the qualifying period all over again. The continuous employment requirement should be removed. Migrant workers would still have to meet the ordinary requirements regarding being in the UK for the purpose of work.

1. 1. Someone, whose immigration status does not allow him or her to qualify for citizenship, cannot include the time on this status towards the qualifying period if he or she later obtains a status that does allow for naturalisation. Someone in the UK to work (which would be a ‘qualifying’ status), who switches status to limited leave as a student (e.g. to do an MBA or some other course to enhance his or her skills), will have to start the qualifying period all over again if he or she then again obtains limited leave as a worker. The person would have no qualifying status as a student. The current provisions should be retained so that all the time someone is lawfully in the UK can count towards the qualifying period. Although some immigration statuses do not allow someone to apply for indefinite leave to remain or citizenship, if someone has a status that allows him or her to apply for indefinite leave or citizenship then he or she can count all of the time they have been here lawfully.

1. 1. Refugees will have similar problems in that the time spent (on temporary admission) waiting for a decision on their asylum claim will not count towards the qualifying period. Time spent on temporary admission should be able to count towards the qualifying period so that refugees, and others granted protection status, can naturalise within the same timeframe as others.

1. The new provisions allow the Government to make regulations to increase the qualifying periods. There is no limit set on this power. The Government should not be free to extend the, already long, qualifying periods.

1. ‘Probationary citizenship’ sounds like someone has done something wrong. It also sounds like someone has a different status to someone on limited leave (temporary residence). However, neither statement is true. The term ‘probationary citizenship’ should be abandoned.

1. The provisions contain no transitional arrangements. Someone, who is on the path to citizenship when the new provisions are introduced, could find that the rules regarding how he or she can naturalise have changed. This could happen even if he or she has progressed several years along the current path to citizenship. There must be transitional provisions, and the Government should be required to either include these in the Bill or make clear what transitional provisions will be provided before MPs are asked to approve the Bill. Transitional provisions should ensure that people who are on the path to citizenship, or have made significant progress on that path, are not required to meet new requirements of which they were unaware when they began the path to citizenship.

_ Many thanks to Steve Symonds at ILPA for this note