Naturalisation as a British citizen by discretion (accessible) – GOV.UK

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Updated 10 January 2023

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This publication is available at https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance/naturalisation-as-a-british-citizen-by-discretion-accessible
Version 12.0
This guidance tells Home Office staff how to consider applications for naturalisation as a British citizen.
If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors, then email the Nationality Policy team.
If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can email the Guidance Rules and Forms team.
Below is information on when this version of the guidance was published:
version 12.0
published for Home Office staff on 22 November 2022
Information under section ‘Comprehensive sickness insurance (CSI)’ has been updated.
This section tells you about the specific requirements an applicant must meet in order to naturalise as a British citizen. The general requirements as to fees, the oath and pledge and biometric enrolment are covered in cross-cutting guidance.
The requirements which an individual must meet vary slightly based on whether they are married to, or in a civil partnership with, a British citizen. Where they are married to, or in a civil partnership with a British citizen, they must meet the requirements of section 6(2) of the British Nationality Act 1981, anyone else is required to meet the requirements of section 6(1) of the British Nationality Act 1981.
A person may be granted a certificate of naturalisation under section 6 (1) of the British Nationality Act if, the applicant:
is at least 18 years old
is of full capacity
meets the residence requirements or is serving outside the UK in Crown Service under the government of the UK
is of good character
has sufficient knowledge of English, Welsh or Scottish Gaelic language, and can provide the required evidence to support this
has sufficient knowledge of life in the UK and provides the required evidence to support this
if successful, intends to have their main home in the UK or enter into or continue in any of the following:
Crown service under the government of the UK
service under an international organisation of which the UK or the UK government is a member
service in the employment of a company or association established in the UK
A person may be granted a certificate of naturalisation under section 6(2) of the British Nationality Act if the applicant:
is at least 18 years old
is of full capacity
is married to, or is in a civil partnership with, a British citizen
meets the residence requirements
is of good character
has a sufficient knowledge of:
English, Welsh or Scottish Gaelic language and can provide the required evidence to support this
life in the UK and can provide the required evidence to support this
In addition to this in some cases it may be appropriate to exempt a person from the language and knowledge of life requirements.
This section provides guidance on how to treat applications for naturalisation on behalf of a child.
Children under the age of 18 cannot be naturalised. Where a child is included on an application you must consider whether they are already a British citizen or can be registered as a British citizen either because they have an entitlement or at the discretion of the Home Secretary.
Where a child included on an application has an automatic claim to British citizenship you must inform them of this in writing.
For further guidance on how to consider applications from children see Registration as a British citizen: children guidance.
This section provides guidance on what to consider when processing an application.
You must not grant a certificate of naturalisation to a person who is already a British citizen. Where a person has an entitlement to British citizenship under another provision of the British Nationality Act 1981, you should make them aware of it before proceeding with the naturalisation application.
If there is nothing in the papers to suggest that the applicant is already a British citizen, you do not need to investigate this further.
Where an applicant has an automatic claim to British citizenship you should write to them informing them of the position, explaining that naturalisation is therefore not necessary. You must also arrange for the fee to be refunded.
If the applicant is not already a British citizen, they may still have an entitlement to be registered as a British citizen under:
section 1(4), if born in the UK on or after 1 January 1983
section 4, if a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a British subject under the act or a British protected person
section 4B, if a British Overseas citizen, a British subject under the act or a British protected person
section 4C if born before 1983 to a Citizen of the UK and Colonies (CUKC) mother
section 4K, if they have an entitlement to register as a British overseas territories citizen under sections 17A, 17C -17F or 17H
section 5, if a British overseas territories citizen by connection with Gibraltar
section 10, if the applicant was a CUKC who renounced that status before 1 January 1983
section 13,if the applicant was a British citizen who renounced that status
paragraph 3 of schedule 2, if born stateless in the UK or a British overseas territory on or after 1 January 1983
paragraph 4 of schedule 2, if born stateless outside the UK and the British overseas territories on or after 1 January 1983
paragraph 5 of schedule 2, if born stateless before 1 January 1983
If the applicant is entitled to registration as a British citizen, you must write to the applicant explaining this and if appropriate that the excess fee will be refunded.
This section tells you how to assess whether an applicant satisfies the full capacity requirement.
Full capacity is defined in section 50(11)of the British Nationality Act 1981 as being ‘not of unsound mind’. It is not further defined in the act, but the requirement can be regarded as having been satisfied if the standard set out below is met.
The requirement is not intended to deny British nationality to individuals who have a disability which makes it difficult for them to communicate. The requirement is specifically to ensure that applicants can comprehend their actions in applying for citizenship. You must therefore be careful not to refuse someone on the basis that they cannot communicate as the result of a disability.
Whilst applicants must understand the purpose of their application, they do not need to have a comprehensive understanding of nationality or citizenship, or the procedures involved. Applicants must be of sufficiently sound mind to know before applying that they want to acquire British citizenship. Before granting an application, you must ensure that there is no reason to doubt that that level of understanding is present or capable of being restored.
Section 44A of the British Nationality Act 1981 allows for the full capacity requirement to be waived where it is in the best interests of the individual.
Most 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. Where there is reason to question the applicant’s capacity you must make further enquiries with the applicant and referee where appropriate.
If it appears that the applicant may have a mental health condition or disability or is receiving treatment in any establishment for people with mental health conditions or learning disabilities, you must not refuse the application solely on this basis. Where there is information which could cast doubt on whether the requirement has been met, you must give applicants or their appropriate representative the option of submitting, at their cost, a report from their doctors or from a person professionally responsible for their care or welfare. You must explain both the full capacity requirement and the Home Office interpretation of it inviting as much information as possible to help reach a decision on the application.
In cases where the applicant cannot be considered of full capacity you must consider whether it would be in their best interests to waive the requirement. It will normally be appropriate to take account of all the following:
the views of the applicant, to the extent that they can express them
the views of any person, professional or otherwise, who has assumed responsibility for the applicant’s welfare
the citizenship status of other family members, especially those with whom the applicant resides or is in regular contact
The decision whether to waive the full capacity requirement should be taken by a Senior Caseworker.
Where the requirement to be ‘of full capacity’ has already been waived, it will be usual to also waive the requirements to make the oath and pledge and to do so at a citizenship ceremony. However, you must invite the views of any professionals or family responsible for the individual’s care. Where there is a desire for the applicant to attend a citizenship ceremony, such as where they are part of a family group of applicants, it should be possible to accommodate this. Such requests will, in most instances, be dealt with by the Citizenship Ceremonies Support team following discussion with the relevant local authority.
This section tells you how to consider if an applicant meets the residence requirement for naturalisation.
In order to qualify for naturalisation as a British citizen, an individual is required to demonstrate close links with, and a commitment to the UK. As part of this the expectation is that applicants should meet the residence requirements.
Whilst there is some discretion to waive some of these requirements, this cannot be done to the extent that the requirements are ignored.
The residence requirements which someone applying under section 6(1) of the British Nationality Act 1981 must meet are that the applicant was:
in the UK at the beginning of the period of 5 years ending with the date of the application
not absent from the UK for more than:
450 days in that 5-year period
90 days in the period of 12 months ending with the date of application
not, on the date of application, subject under the immigration laws to any restriction on the period of stay in the UK
not, at any other time in the 12-month period ending with date of application, subject under the immigration laws to any restriction on their period of stay in the UK
not at any time in the period of 5 years ending with the date of application, in the UK in breach of the immigration laws – however, a person can be treated as meeting this requirement without further enquiries if they hold indefinite leave to enter or remain in the UK
There is discretion to waive the residence requirements except that the applicant must be free from time restrictions under immigration law at the time of their application
The residence requirements which someone applying under section 6(2) of the British Nationality Act 1981 must meet are that the applicant was:
in the UK at the beginning of the period of 3 years ending with the date of application
not absent from the UK for more than:
270 days in that 3-year period
90 days in the period of 12 months ending with the date of application
not, on the date of the application subject under the immigration laws to any restriction on their period of stay in the UK
not, at any time in the period of 3 years ending with the date of application in breach of immigration laws – however, a person can be treated as meeting this requirement without further enquiries if they hold indefinite leave to enter or remain in the UK
There is discretion to waive the residence for applications under section 6(2) of the British Nationality Act 1981 with the exception of the requirement that the applicant must be free from time restrictions under immigration law at the time of their application.
In assessing whether an individual meets the residence requirements you must consider the following aspects:
presence in the UK at the start of the qualifying period
absences:
absences during the qualifying period
absences in the final year
technical absences
spouses or civil partners of British citizens in Crown or designated services
immigration law:
free from condition on period of time in UK
breaches of immigration law in the qualifying period
There are certain people who do not need to have been in the UK at the start of the 5-year qualifying period. These are:
applicants who are applying only on the grounds of Crown service
spouses or civil partners of British citizens in Crown or designated service overseas
applicants who are technically absent from the UK
All other applicants must have been physically present in the UK on the first day of the qualifying period. There is discretion to waive this requirement (see section on discretion).
In most cases, we expect applicants to have been in the UK on day 1 of the qualifying period as this means they have completed the full 5 (or 3) years in the UK as required. However, there is discretion to waive this requirement in special circumstances.
To identify the start of the qualifying period you use the day after the application date minus the length of the qualifying period. For example in an application under section 6(1) made on 1 September 2022, the applicant must have been legally in the UK on 2 September 2017.
There may be special reasons, such as those relating to the applicant’s health, that prevented them from being in the UK at the start of the qualifying period. The Nationality and Borders Act 2022 introduced the power to treat the applicant as having fulfilled this requirement in the special circumstances of a particular case even though they were not in the UK at the beginning of the residential period.
Discretion to treat the requirement to have been in the UK on the first day of the residential qualifying period as fulfilled should normally be exercised if one or more of the following is met:
the applicant was prevented from being in the UK because they had been removed from the UK, and the decision to remove them was later overturned
the applicant was incorrectly prevented from resuming permanent residence in the UK following an absence
the applicant is normally resident in the UK but there were exceptional reasons why they could not return from abroad at that time, such as illness, or travel restrictions due to a pandemic
the applicant is a current or former member of the armed forces (see the section on armed forces applicants)
If you propose to exercise discretion, you should see appropriate evidence demonstrating why the applicant was unable to be present at the start of the qualifying period. For example, if this is based on health grounds, you should see relevant medical evidence.
Applicants are expected to meet this requirement, but there may be cases where the person has inadvertently applied on a date when they did not. The application form will ask applicants to agree that the Home Office use a different date as the date of application, if this would work to their advantage.
If there has been a fee change between the original application date and the date that they can now meet the requirement (to have been in the UK at the start of the qualifying period), they must pay the fee in force at the time of the new application date.
Changing the application date in this way may be appropriate for applicants who did not meet the requirement to have been in the UK at the start of the qualifying period but meet the requirement by the time you consider their application. When you consider the application, you must assess whether the person would meet this requirement (and the other residence requirements) on either the date you are considering the application, or a date between their original application and consideration. If a person does not meet the requirements on the date of consideration, but will do so within the next two months, it may be appropriate to put the application on hold. If the person will not meet the requirement for some time, you must consider whether there are exceptional grounds to exercise discretion (see section on discretion).
You must check the available evidence to see whether an applicant meets the residence requirements.
The following can be used as evidence of residence:
passports or travel documents which have been stamped to show arrival in the UK and entry and departure from other countries: these should be checked against the list of absences that applicants are asked to provide on the application form
Home Office records
if the applicant does not have passports to cover the qualifying period, other evidence such as employers’ letters or tax and National Insurance letters:
You must not normally accept doctors’ letters on their own as proof of residence. However, if nothing else is available and the doctors can confirm that they have seen the applicant on a regular basis during the period concerned these may be accepted.
If there are gaps in a person’s evidence of residence and it is clear from the information available that they could not have travelled, you must accept this. Examples of this might include a refugee who has no means of travel or where immigration records confirm continuous residence.
You must only count whole days’ absences from the UK. You must not count the dates of departure and arrival as absences. For example, a person who left the UK on 22 September and returned on 23 September will not be classed as having been absent from the UK.
An applicant only needs to have been physically present in the UK for the purpose of the act. They do not have to have been ordinarily resident or domiciled here.
Where an applicant has spent more than the 450 days for section 6(1) applications, or 270 days for section 6(2) applications], outside of the UK during the qualifying period you must consider exercising discretion if they meet the other requirements.
Where the applicant exceeds the permitted absence by 30 days or less you must exercise discretion unless there are other grounds on which the application falls to be refused.
Where the applicant has absences of between 480 and 900 daysfor applications under section 6(1) of the British Nationality Act 1981], or 300 and 540 days for applications under section 6(2) and otherwise meets the requirements you must only consider exercising discretion where the applicant has established their home, employment, family and finances in the UK, and one or more of the following applies:
at least 2 years residence (for applications under section 6(1)), or 1 year (for applications under section 6(2)), without substantial absences immediately prior to the beginning of the qualifying period – if the period of absence is greater than 730 days (for section 6(1)) or 450 days (for section 6(2)) the period of residence must be at least 3 or 2 years respectively
the excess absences are the result of:
postings abroad in Crown service under the UK government or in service designated under section 2(3) of the British Nationality act 1981.
accompanying a British citizen spouse or civil partner on an appointment overseas
the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a multinational company based in the UK with frequent travel abroad
exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement
the applicant was prevented from being in the UK because they had been removed from the UK, and the decision to remove them was later overturned
the applicant was incorrectly prevented from resuming permanent residence in the UK following an absence
the excess absences were because the applicant was unable to return to the UK because of global pandemic
Where the applicant’s absence exceeds those covered above as a result of Crown Service overseas, discretion should normally be exercised where:
before an overseas posting the applicant was resident in the UK and Islands
the excess absence was due to either:
a period of absence from the UK and Islands on a posting on Crown service
a period of absence from the UK and Islands accompanying a spouse, civil partner, partner or parent on a posting on Crown service
The person in Crown service should provide evidence of their employment and posting from the relevant Government department.
In other cases, where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level.
You normally only exercise discretion for excessive absences during the final year of the qualifying period under section 6(1) if the future intentions requirement is met.
Where the applicant is applying under [section 6(2) or has met the future intentions requirement the following will apply. Total absences:
of 100 days or less; exercise discretion
between 100 and 180 days, where the residence requirement across the qualifying period is met – discretion is only appropriate where the applicant demonstrates strong links through the presence of family, employment and their home in the UK
of more than 100 days but not more than 180 days where the residence requirements over the full qualifying period are not met – consider exercising discretion if both the following apply:
applicants have demonstrated that they have made this country their home by establishing a home, employment family, property and finances in the UK
the absence is justified by Crown service or by compelling occupational or compassionate reasons, including inability to travel because of a global pandemic
exceeding 180 days where the residence requirements over the full qualifying period are met – consider exercising discretion if the applicant has demonstrated that they have made the UK their home exceeding 180 days where the residence requirements over the full qualifying period are not met – you must only exercise discretion where the applicant has demonstrated that they have made this country their home and there are exceptional circumstances such as Crown Service
Technical absence is where a person is regarded as absent from the UK even though they are physically present here. This is where they are:
exempt from immigration control under section 8(3) of the Immigration Act 1971
diplomats
exempt from immigration control under section 8(4) of the Immigration Act 1971
members of home, Commonwealth or visiting forces
detained in hospital or other place of detention or unlawfully at large in the UK following a conviction for an offence
detained, or on temporary admission or immigration bail, or unlawfully at large under the immigration laws
The following are not technically absent from the UK:
locally engaged non-diplomatic members of missions
people exempt from immigration control under section 8(2) of the Immigration Act 1971 – consular staff and certain employees of international organisations
There is discretion under paragraphs 2(b) and 4 of schedule 1 to the British Nationality Act 1981 to treat:
technical absences as residence for naturalisation purposes
an applicant as present here on the date at the start of the qualifying period if it comes within the period of technical absence
For members of Armed forces see the Crown, designated or Armed forces section of this guidance.
There are 3 categories of people who are treated as exempt from immigration control under section 8(3) and (4) of the Immigration Act:
those who are, or have been, members of the home forces, such as HM Forces and were serving in the UK on the date of application
past and present members of the diplomatic staff of a mission, a
Commonwealth or visiting force, whether locally engaged or otherwise
past and present locally engaged members of the non-diplomatic administrative, technical, and service staff of a mission who:
started their employment before 1 August 1988
were locally recruited on or after 1 August 1988 and were not at that time entitled to exemption from control but became so entitled upon re-admission following an absence abroad
Section 8(3) of the Immigration Act 1971 gives total exemption from immigration control to members of a diplomatic mission. This is the head of a mission, members of the diplomatic staff and the administrative, technical, and service staff. Exemption is also granted to a person who belongs to the family and forms part of the household of the member. Private servants of members of a mission do not qualify for exemption.
You must consider exercising discretion to disregard up to 730 days technical absence in the 5-year qualifying period and up to 450 days technical absence in the 3-year qualifying period if the applicant meets the requirements below:
they were granted indefinite leave to remain at least 12 months before applying for naturalisation
they can show strong links with the UK which are wholly independent of the exempt employment, such as a period of residence before they entered the exempt employment
they otherwise qualify for naturalisation
There may be exceptional reasons relating to either the applicant’s employment or to the interests of the UK when you should normally exercise discretion. This might be where the applicant is a foreign or Commonwealth diplomat who has rendered service to UK interests or has spent a significant part of their career here and wishes to live here permanently in retirement.
However, you must not normally disregard more than 730 (5-year route) or 450 (3- year route) days technical absence unless there were particularly compelling circumstances relating to the applicant or the interests of the UK. You should not normally expect to naturalise a serving diplomat, and any such case should be referred to Foreign and Commonwealth Office (FCO). Normally a serving diplomat should wait until the exempt employment has ended, or is about to end, before applying for British citizenship. You must only exceptionally grant an application in these circumstances.
You must check the applicant’s immigration status, where it is either known or suspected that the applicant has ceased to be a member of a household and therefore ceased to be exempt.
Section 8(3) was amended by the Immigration Act 1988 to ensure that, from 1 August 1988, locally engaged members of a mission in the non-diplomatic categories of administrative and technical staff and service staff, and their family would only be entitled to exemption from control if they entered the UK either:
as a member of that mission
to take up a post offered to them before arrival
This had been done to prevent any abuse of obtaining employment at a mission to prolong a person’s stay in the UK when the person would not otherwise qualify under the Immigration Rules.
Those who began their exempt employment before 1 August 1988 are exempt from control. However, you must normally treat any technical absence as residence if the applicant either:
has ceased to be in exempt employment and has obtained or could immediately be granted Indefinite leave to remain (ILR)
would immediately be granted ILR on leaving exempt employment
otherwise qualifies for naturalisation
If the applicant is otherwise qualified for naturalisation and has ceased to be exempt from control but has not been granted ILR, you must consult Permanent Migration casework. They should be asked to advise if they would be likely to grant ILR if the applicant’s exempt employment ended now.
If the applicant is otherwise qualified for naturalisation, and has already been, or would be likely to be, given ILR, you must grant the application.
If the applicant is otherwise qualified for naturalisation but has not been, or is unlikely to be, given ILR, you must normally refuse the application unless there are particularly compelling circumstances which might justify the grant of naturalisation now.
You must apply the same criteria to members of diplomats’ households when considering whether to treat technical absence as residence.
Members of households are defined as:
spouse/civil partner
dependent children under the age of 18
dependent children over the age of 18 who are still in full time education
dependent relatives who formed part of the household abroad, such as an elderly widowed parent
other close relatives who have no one to look after them, such as young, orphaned brothers and sisters
You must take care in cases where it is known or suspected that the applicant has ceased to be a member of a household, and so ceased to be entitled to an exemption. If so, the applicant may either meet the normal residence requirements because they have no technical absence or need to regularise their stay.
If the applicant is detained in hospital, or other place of detention in the UK, or is unlawfully at large following conviction for an offence you must not normally treat the technical absence as residence unless:
the applicant has been granted a free pardon by the exercise of the Royal Prerogative of Mercy
it has been officially recognised that the grounds on which the applicant was sentenced cannot be relied on
the conviction is spent under the Rehabilitation of Offenders Act 1974
If an applicant has been granted leave to enter the UK at the end of a period of detention you must normally count the period of detention as residence.
If the applicant was either removed, or departed voluntarily, from the UK at the end of the period of detention, you must not normally exercise discretion to count this period of ‘technical absence’ as residence.
Immigration Bail replaced the previous powers of temporary admission, temporary release and immigration judge or Chief Immigration Officer (CIO) bail in January 2018.
An immigration officer may release a person into the UK on immigration bail, as an alternative to detention. This is not technical absence. However, you must treat periods of immigration bail (and previous period of temporary admission) in a similar way to periods of detention.
If a person has been removed, or has made a voluntary departure, from the UK following a period of immigration bail or temporary admission, you must treat that period as if it were a period of ‘technical absence’. However, if you are refusing the application on that basis, you must not say that the Secretary of State is not prepared to exercise discretion to waive a ‘technical absence’. Instead you must use the following wording (amend as appropriate when addressing a representative):
‘The Secretary of State is not obliged to naturalise a person who meets the formal statutory requirements, and will not normally be prepared to naturalise a person whose period of immigration bail under the Immigration Act 2016 [or temporary admission under the Immigration Act 1971], combined with any absences from the United Kingdom during the 5 year period where applying under section 6(1) of the 1981 Act or 3 year period where applying under section 6 (2) of the 1981 Act ending with the date of application, exceeds 450 or 270 days respectively.
Your application has been carefully considered, but the Secretary of State is not of the opinion that there are exceptional circumstances in your case which would justify a departure from the normal practice’
You must treat time when a person was unlawfully at large in the UK in the same way as periods of immigration bail and detention. Periods of unlawful presence in the UK when a person should be in detention or while on immigration bail should not normally count as residence for the purposes of naturalisation.
This page tells you about applications for naturalisation and immigration time restrictions.
All applicants for naturalisation must be free from immigration time restrictions on the date of application. There is no discretion to waive this requirement. It is important to note that this does not mean all applicants must hold indefinite leave to enter (ILE) or indefinite leave to remain (ILR) in the UK. In addition to holding ILE or ILR the following must also be treated as meeting this requirement:
people who have the right of abode in the UK
people who are not in the UK, unless it is clear that they are applying from outside the UK to circumvent the requirement and would otherwise be subject to immigration conditions
people who have entered the UK illegally and have not been granted limited leave, although these will normally fall to be refused on the fact that they have breached immigration laws
have overstayed a limited leave to enter or remain
people exempt from immigration control under section 8(2), 8(3) or 8(4) of the Immigration act 1971 unless technically absent from the UK
A person is not regarded as being free from immigration time restrictions if they:
are on immigration bail
are in immigration detention
have absconded from immigration bail or detention / or are here unlawfully
A person who is outside the UK is not subject to an immigration time restriction. However, a person who applies from outside the UK purely to get around this requirement should normally be refused. The decision should be made at Senior Caseworker level. Where you are refusing an application on the basis that they are applying from outside the UK in an attempt to circumvent the requirements you must include the following explanation as part of the decision letter:
“The Secretary of State is not obliged to naturalise a person who meets the requirements in schedule 1 to the 1981 act, and will not normally be prepared to do so if it appears to her that the sole or main purpose in applying from outside the UK was to circumvent the requirement for the applicant to be free, on the date of application, from any restriction under the immigration laws on the maximum length of their stay in the UK.”
For people who applied for naturalisation from 1 July 2021 onwards, EEA and Swiss nationals and their family members will be free from immigration time restrictions on the date of application if they:
benefit as an Irish national
have ILR under the EU Settlement Scheme (EUSS): – they can show that they have been free from immigration time restrictions for 12 months before applying using a combination of current EUSS, leave and permanent residence they previously held under the EEA Regulations
have been granted indefinite leave to remain under the Immigration Rules on another basis
are entitled by virtue of diplomatic status to exemption from UK immigration control
had a permanent residence card under the EEA regulations and made an EUSS application prior to 30 June 2021 that has not yet been concluded; – in this instance, they must use their permanent residence card to apply for citizenship, which will remain valid until they receive a decision on their EUSS application
Where an EEA or Swiss national (or their family members) held permanent residence status under the EEA regulations but did not make an EUSS application before the end of the grace period on 30 June 2021, they will have lost their EEA residential rights and will no longer be free from immigration time restrictions based on their permanent residence.
Information about EEA nationals who applied before 1 July 2021 can be found in EEA nationals.
A person can demonstrate that they are free from time restrictions by producing:
a passport showing permission to remain permanently in the UK
the Home Office letter showing permission to remain permanently in the UK
a biometric residence permit (BRP) showing ILR, ILE or no time limits
a certificate of entitlement to the right of abode
an EUSS record showing they have been granted EUSS ILR (settled status)
A permanent residence card or document certifying permanent residence can only be relied upon for as long as these documents remain valid under the EEA Regulations. This will be where the document holder applied to the EUSS before 30 June 2021, and the application has yet to be resolved, in which case their permanent residence status will remain valid until a decision is reached on their EUSS application.
If the applicant has ILR granted through the EUSS, you must check the date of grant against Home Office records.
Where a person was settled in the UK before 1 January 1973, they may be free from immigration time restrictions. Such cases must be considered in line with the Windrush Scheme casework guidance.
If an EEA or Swiss applicant (or their family member) submits an application without having held EUSS ILR for 12 months at the date of application, checks should be conducted to see if they had previously been exercising treaty rights in the UK for 5 continuous years and so attained permanent residence status under the EEA regulations. If they held this status for 12 months before being granted EUSS ILR, they will have met the requirement to be free from immigration time restrictions for 12 months. Instances should become fewer with time as individuals will increasingly be able to rely solely on their EUSS status to meet this requirement.
There is also discretion to waive this requirement in certain circumstances.
Discretion to disregard immigration time restrictions in the 12 months prior to application can be exercised if one of more of the following is met:
the applicant had less than 12 months free from time restrictions when they applied, but meets the requirement by the time you consider the application, and all the other requirements are met
the applicant is an EEA or Swiss citizen who held permanent residence status whilst valid and who did not apply to the EUSS by 30 June 2021 but UKVI later accepted there were reasonable grounds for a late application and proceeded to grant EUSS ILR
the applicant had been put on conditions when returning to the UK, but has since established that they were a returning resident or exempt from control
the period of limited leave was less than 10 days at the beginning of the 12- month period
the period of limited leave was between 10 and 90 days at the beginning of the 12-month period, and the applicant:
meets all the other requirements
has strong links with the UK through having established their home, property and family here
the period of limited leave was more than 90 days at the beginning of the 12- month period, and:
the applicant meets all the other requirements
the applicant has strong links with the UK through having established their home, property and family here
there are compelling business or compassionate reasons to justify granting now
the period of limited leave was more than 10 days at the beginning of the 12- month period, and:
the applicant does not meet all the other requirements
has strong links with the UK through having established their home, property and family here
there are compelling business or compassionate reasons to justify granting now
there are exceptionally compelling circumstances.
the applicant made an application for ILR at least 15 months before the citizenship application, and was granted following a delay which was not their fault
an application for leave or asylum was refused in error and, if it had been granted correctly, the applicant could have applied for ILR and met the requirements on the date of application
One of the requirements for naturalisation is that the person should not have been in breach of the immigration laws in the residential qualifying period.
The Nationality and Borders Act 2022 amended the British Nationality Act 1981 so that a person can be treated as meeting this requirement without enquiring into whether the applicant was in the United Kingdom in breach of the immigration laws if they have been granted indefinite leave to enter or remain in the UK.
If the applicant has indefinite leave to enter or remain in the UK (ILE or ILR) you do not need to look back to see if they were here lawfully. You may proceed to grant the application if all the other requirements are met.
You do not need to ask for evidence of the person’s status prior to them being granted ILE or ILR, or whether they were working lawfully, or what their basis of stay was in the UK. For example, you do not need to enquire what activity was being undertaken or whether EEA nationals with ILR needed or had comprehensive sickness insurance. This will apply to most cases.
It may still be appropriate to continue to apply the requirement in certain circumstances, such as where information has subsequently come to light which, had it been known at the time, might have affected the decision to grant indefinite leave, or might now lead to revocation of ILE / ILR. In such cases you must make a thorough assessment of the person’s immigration history. If there were periods of unlawful presence in the UK, you must consider whether there were any factors that might make it appropriate to exercise discretion using the guidance at Considering immigration breaches.
The good character guidance has been amended to be consistent with this approach.
Certain British and Commonwealth nationals have the Right of abode in the UK. A person with the right of abode is not subject to immigration control and so will have been in the UK lawfully during the qualifying period.
Irish citizens can enter and stay in the UK without requiring permission, see Common travel area guidance. (There are some limited exceptions to this, where the person is subject to a deportation order, exclusion decision or exclusion order, or travel ban) They will therefore have been in the UK lawfully during the qualifying period.
This section tells you about the future intentions requirement for those applying for naturalisation under section 6(1).
The main purpose of the requirement is that those wishing to be naturalised as British citizens should not already have decided, or intend, to break their links with the UK. The clearest indicator of this will be past behaviour. If that suggests that the requirement is met, and there is no reason to think this will not continue, the applicant’s statement about future intentions may be taken at face value.
A person must intend, if naturalised, to either:
have their principal home in the UK
enter into, or continue in either:
Crown service under the government of the UK
an international organisation of which the UK or HM Government is a member
a company or association established in the UK
If applicants say their intention is to have their principal home in the UK, you should accept that they meet the requirement if they:
meet the residence requirements, without the need to exercise any discretion over excess absences other than up to 30 days
have an established home here
have been, or intend to be, absent from the UK for not more than 6 months
the absence was, or will be, clearly temporary
if it is an intended absence, we are satisfied they intend to return to the UK
they have maintained an established home here where any close family who have not accompanied them abroad have continued to live
there is no information to cast doubt on their intention, for example, either:
a partner who is or intends to live outside of the UK
a recent absence from the UK for a period of 6 months or more
Where it is proposed to exercise discretion to waive excess absences, you must be satisfied that the applicant has an established residence, family and a substantial proportion of any estate here. You should normally accept that situation will continue, and that the future intentions requirement has therefore been met, unless you have information that, since the date of the application, the applicant or their partner no longer has an established residence here or is planning to move abroad.
Where it is not certain that a residence has been established you must make enquiries to see whether there is evidence of a principal residence outside this country including whether the:
applicant or their partner owns property abroad
applicant’s family live abroad, either in the family home or elsewhere
Where there is such evidence, or your doubts cannot be resolved satisfactorily, you must refuse the application.
Information may also come to our attention that HMRC regard an applicant as domiciled abroad for tax purposes. In such cases, you must request the applicant’s permission to contact the HMRC. You should then ask the HMRC to provide us with a copy of the applicant’s completed ‘Domicile Enquiry’ questionnaire, which may throw some light on future intentions. If the applicant refuses permission, you must refuse the application.
The fact that an applicant’s spouse or partner is not applying for citizenship should not, of itself, be taken as evidence that the requirement is not met. In such a case, however, you should make enquiries of the applicant – whether the spouse or partner is resident abroad or whether there is any evidence that the spouse or partner intends to move abroad. The fact that a spouse or partner is living, or will shortly be living, abroad should not normally be taken as evidence that the requirement is not met if any of the following apply:
the couple are separated
the spouse or partner has applied for, and is awaiting, an entry clearance
you are otherwise satisfied that the spouse or partner intends to join the applicant here
it is clear the couple are content to live apart for the foreseeable future
If none of these reasons apply, and the information suggests that any applicant maintains, or intends shortly to maintain, their principal residence abroad, spends substantial periods with their spouse or partner and children abroad, the application should normally be refused.
If applicants make it clear that, while they intend to live in the UK for a period, they have made firm plans to establish their principal home abroad at some future date the application must be refused. You must not refuse an application solely on the suspicion that the applicant will reside outside of the UK.
If the applicant is abroad or is about to go abroad for a continuous period of more than 6 months, you should normally refuse the application and advise the applicant to re-apply, on their return to the UK, for permanent residence. An exception may be made to the general rule, however, where any of the following apply:
the applicant is undertaking voluntary work such as with the Voluntary Service Overseas (VSO)
the applicant is undertaking studies, training, or employment abroad which is necessary to pursue a UK based profession, vocation or occupation
the absence forms part of an established pattern, such as in relation to employment at sea and the applicant is primarily based in the UK
Where an applicant has more than one home and their principal home is outside of the UK at the time of application you must refuse the application.
There are some applicants whose way of life does not allow them to maintain a principal home in the conventional sense. This applies to some international celebrities. Applications from such people must be dealt with on their merits, but you must establish:
their position under UK tax law
what, if any, property they own here
what personal connections they may have with the UK
the length of time they spend in the UK each year
the extent to which they identify themselves with the UK
You should normally accept that applicants meet the requirement if they meet all the following:
are domiciled in the UK for tax
spend a reasonable period of time in the UK other than when working in the UK
have some personal connections in the UK
Employment with an international organisation of which the UK or HM government is a member was added to the types of service designated under the British Nationality Act 1981 in 2006. Where the employment relates to a period before 2006 you must not consider it as designated service.
There is no exhaustive list of international organisations, of which the UK or HM Government is a member for the purpose of the British Nationality Act 1981. When considering whether an individual’s employment falls within the provisions for designated service, the following requirements must be met:
the organisation must be an intergovernmental organisation composed primarily of sovereign states, of which the UK or HM Government must be a direct member of the organisation, participate in its activities and play an active role in the governing body:
the individual is an employee, or giving services both:
on a full-time basis without payment or for a nominal sum
direct to, and for the benefit of, the organisation
You should refuse applications where the applicant only provides services to an international organisation on an occasional basis as they have not established a substantial degree of commitment and direct involvement over a period of time. Each case must be considered on its merits.
Whilst the UK may be a member of an organisation it is important to be aware that this may not be the case for any subsidiary body.
What constitutes such service is not defined in the British Nationality Act 1981. But we should accept that applicants working outside the UK are in such service if they are any of the following:
an employee
self-employed and have registered themselves as a company
self-employed as a partner in a going concern
a company director
A company may be regarded as established in the UK if all the following apply, it is:
described as an English, Scottish, Wales, Northern Irish or overseas company registered under the Companies Acts
a ‘going’ concern
not registered for convenience only
A company may not be regarded as established in the UK if any of the following apply:
it has not been registered as an English, Scottish, Northern Irish or overseas company
it is not a ‘going’ concern
it is registered for convenience only
the distribution of its workforce is such that it is essentially an overseas company with a notional presence in the UK
Applicants who are in Crown or other qualifying service or employment abroad at the time of application, and who clearly intend to continue in that service or employment for at least 5 years from the date the application is substantively considered, should be regarded as meeting the future intentions requirement.
If an applicant cannot, or intends not to, complete 5 years’ service or employment from the date when the application is considered, you must consider their future intentions on completion of the service or employment. These may be regarded as met if the applicant can satisfy the Home Office of an intention to remain in, or return to, or come to, the UK on completion of the service or employment. You can be satisfied if any of the following apply. The applicant has:
already bought property here
strong family links here
always returned to this country after previous employment abroad in addition to this both the following must apply:
they have stated intention to live in the UK on the completion of the service or employment
there is no information in the papers to suggest otherwise
Applicants who state that they intend, on being naturalised, to enter Crown or other qualifying service or employment for 5 years or more from the date of substantive consideration of the application may be regarded as meeting the future intentions requirement.
If the intended period of qualifying service or employment is for less than 5 years from the date that the application is considered, you must consider the applicants future intentions in the normal way.
You must consider the applicant as meeting the future intentions requirement where they are accompanying an established spouse or civil partner on a posting outside the UK for a period of 6 months or more where the applicant’s spouse or civil partner circumstances would meet the principal home requirement.
You must obtain written confirmation of the future intentions of the applicant’s spouse or civil partner. This written confirmation will normally be sufficient.
However, you should not normally regard the future intentions requirement as being met where; for example, there is evidence to suggest that the applicant’s own intentions do not correspond with those of their spouse or civil partner.
For a spouse or civil partner to be considered as established they must have been married, in a civil partnership or cohabited with their partner for a period of at least 12 months. Where a government department confirms the length of relationship you do not need to query this further. In other cases, you must ask for documentary evidence of cohabitation covering the 12 months immediately prior to application.
Evidence should be in the form of official documents such as bank statements and utility bills, you must not accept circular mail.
Whenever you tell applicants you are not satisfied that they intend to make their home or principal home in the UK if naturalised, you must take care to ensure that the wording of the refusal letter reflects the requirements of paragraph 1(1)(d)(i) of Schedule 1 to the British Nationality Act 1981 for example ‘The Secretary of State is not satisfied your intentions are such that, in event of a certificate of naturalisation as a British citizen being granted to you, your home or principal home would be in the United Kingdom’.
This page tells you how to consider application for naturalisation where the person is:
applying on the basis of their Crown service
a current or former member of the British armed forces
the spouse, civil partner or child of a person in the armed forces
the spouse or civil partner of a British citizen in Crown or designated service outside the UK
Designated service is service that the Home Secretary has passed an order designating it as being closely linked with the activities outside the UK of the UK government or the government of a qualifying overseas territory. For more information see the list of designated service.
This section tells you how to consider an application under section 6(1) on the basis of the applicant’s crown service, rather than on the residence requirements (paragraph 1(3) of schedule 1 to the British Nationality Act 1981).
An applicant is in Crown service if they are:
in an established permanent position, which can include a fixed term appointment
paid for their service directly from funds voted by Parliament
providing service direct to the Crown
Honorary appointments, such as legal adviser to a British Embassy or High Commission, may be included on this definition.
To qualify under this provision a person must be serving outside the UK on the date of application.
An applicant can show that they are in Crown service by providing a statement or certificate from a government department or branch of the armed service. If you are in doubt about to whether an applicant’s employment can be regarded as Crown service, you must ask the employers for more detailed information about the nature of the service and about who is responsible for paying the applicant.
Applicants applying under section 6(1) on grounds of Crown service abroad must meet the following requirements:
good character
knowledge of language and life in the UK
future intentions
Naturalisation is at the discretion of the Home Secretary, but those applying based on their Crown service abroad are also expected to demonstrate that their service and connections with the UK are significant enough to justify exercising discretion.
In addition to the statutory requirements Crown service applicants are expected to meet the following criteria. These are set out in order of importance with quality of service being the most important:
quality of service
connections with the UK
rank or grade
loyalty
length of service
advantage to UK
If this quality of service criterion is not met, you must not normally exercise discretion to naturalise the applicant, even if the statutory requirements and the other criteria are met.
Applicants must normally:
be the holder of a responsible post
have performed their duties to an exceptionally high standard Examples of this are:
outstanding military service, especially in time of war
outstanding service representing HM Government (such as a vice consul)
other service, significantly above and beyond the call of duty, which has been of direct benefit to the UK and its interests
Applicants should normally show, in order of importance:
past residence in the UK – the longer and more recent the better
close family members – spouse, children, parents, siblings – in the UK
property house, other property, investments including savings accounts, in the UK
other contacts in the UK
A future intention to move to or return to the UK is not relevant to establishing a connection with the UK.
The more senior the applicant, the more likely they are to be able to meet the outstanding service requirement. However, this does not rule out an applicant who has served in a junior post and who may have performed particularly deserving service.
You must normally expect loyalty to have been tested and have been shown to be beyond question. Examples might include someone who has put themselves at risk from a hostile foreign government or made themselves unpopular among their people by their commitment to the UK.
Long service on its own is not sufficient to exercise discretion. You must normally expect the applicant to have maintained exceptional service for at least 10 years.
A person in Crown service who does not meet some or any of the above criteria may still be naturalised if there is a strong argument that it would be operationally advantageous for them to be a British citizen. In such cases, the employing department or service must demonstrate that advantage in detail. You must not naturalise a person on this basis alone unless it is shown that it is vital to UK interests that the applicant should be naturalised.
This section tells you how to consider applications from current and former members of the armed forces.
Armed forces applicants must meet the following requirements:
to be free of immigration time restrictions on the application date
the good character requirement
the knowledge of language and life in the United Kingdom requirements
the future intentions requirement
Applicants serving in Brigade of Gurkhas must also meet the following criteria.
If the applicant is currently serving in the Brigade of Gurkhas, you must:
calculate the number of days’ technical absence in the qualifying period and exclude this from the residence count
combine technical absences with actual absences to obtain the total number of days’ absence during the qualifying period
apply the normal levels of permitted absence and not exercise discretion over any excess absences
Most applications from serving members of the Brigade of Gurkhas will be refused as they will have excess absences. You must advise them of this using DocGen letter ICD2818.
If you have applied the criteria above, but an application from serving Gurkhas would still succeed, you must refer the case to the Deputy Chief caseworker.
This section tells you how to deal with applications from:
former members of the armed forces, including former Gurkhas
current members of the forces who are not in the Brigade of Gurkhas
There is discretion within the British Nationality Act 1981 to overlook the requirement to have been in the UK on the first day of the 5 year qualifying period.
You must normally exercise discretion where:
the applicant was a member of the UK armed forces on the first day of the 5- year qualifying period
they were unable to be physically present on that date because of their service in the armed forces
they meet all the other requirements for section 6(1).
You must also treat any ‘technical’ absences during the qualifying period as residence.
You must also disregard all actual absences from the UK that were due to the applicant’s armed forces service.
While applicants were in military service it is unlikely that their passports will have been stamped. However, as we would overlook any service-related absences, it is not necessary to see service records confirming each absence. You must, however, see evidence from the Ministry of Defence confirming duration of service in the armed forces. Any non-service-related absences can be confirmed by the applicant’s passport.
For periods after discharge from the forces ex-servicemen must produce normal evidence of residence either a passport or alternative evidence of residence.
While a person is in the armed services, they are exempt from immigration control and so free from immigration time restrictions. Applicants will have been free from immigration time restrictions throughout their period of service. In many cases, former armed services personnel will have been granted Indefinite leave to remain (ILR) on discharge and will meet the requirement to have been free from immigration time restrictions in the 12 months prior to the date of application.
In some cases, the former armed forces member will have been granted 28 days limited leave on discharge before being granted ILR. In such cases you must exercise discretion over the requirement to be free from immigration time restrictions in the 12-month period before making the application. You must not normally exercise discretion in this way if the former armed forces member had been granted a longer period of limited leave on other grounds.
Where an ex-member of the armed forces has not been granted Indefinite leave to enter (ILE) or ILR, you must refuse the application and advise the applicant to obtain ILE or ILR prior to submitting a further application for citizenship. You must refuse on either:
breach of immigration laws if the applicant is here unlawfully
not being free from immigration time restrictions if the person has limited leave to remain
You must not refuse an application from a current or former member of the armed forces, other than a currently serving member of the Brigade of Gurkhas, without first referring the case to the Chief Caseworker, who will determine if the case needs to be referred to ministers.
This page tells you about considering spouses, civil partners and children of members of the armed forces for naturalisation.
Spouses, civil partners and children of servicemen are not exempt from immigration control while residing in the UK. Instead, they are generally given leave to remain as long as their spouse or civil partner is in service. While spouses and civil partners still have limited leave to remain, they will not be able to meet the criteria to be free of immigration time restrictions and you must refuse their applications. Any children will not normally meet the future intentions criteria for section 3(1).
Once spouses, partners and children become settled, they will be able to apply for naturalisation or registration. They may have high levels of absences either because they have been accompanying their spouse, civil partner or parent overseas or because they have not been able to accompany them while they are in the UK. You must consider disregarding any absences that occurred as a result of the spouse’s or civil partner’s absences using the same criteria as for an applicant in the forces.
Any child born in the UK to a parent who is in HM armed forces is automatically a British citizen. Where a child is not already a British citizen, we should consider the application in line with the parents and be prepared to waive the section 3(1) criterion for children over 13 years of age to have completed 2 years’ residence in the UK.
Where the applicant is the spouse or civil partner of a member of the armed forces who is a British citizen, you must consider in accordance with the section on spouses or civil partners of British citizens in Crown or designated service.
This page tells you about considering applications for spouses and civil partners of British citizens in Crown or designated service.
When you are considering an application where the applicant is the spouse or civil partner of a British citizen who is in Crown or designated service, who was recruited for that service whilst in the UK, you can use discretion to waive the following requirements:
the requirement to have been in the UK on a date 3 years before the date of application
the requirements not to have been absent for more than 270 days in the 3-year qualifying period or more than 90 days in the final year of the qualifying period
The requirements above should only be waived where the:
applicant is aged 18 or over, is of full capacity and is of good character
applicant is on the date of application married to or is in a civil partnership with a British citizen who:
is serving abroad, or is likely soon to be posted abroad in Crown service or service designated under section 2(3) of the British nationality act 1981
was recruited to the service in question in the UK
marriage or civil partnership has subsisted for at least 3 years on the date of application
applicant is unlikely for the foreseeable future to be able to meet the residence requirements because of their spouse or civil partner’s service abroad
employing organisation certifies that naturalising the applicant would be in its interests in order to avoid difficulties in any of the following:
retaining the services of an essential officer
enabling an applicant to accompany the officer on a foreign posting of a security nature
Where the marriage or civil partnership has not subsisted for at least 3 years on the date of application, you must only exercise discretion where the employing service has provided compelling operational or security reasons to justify granting the application.
You must not apply discretion where the applicant and their spouse or civil partner has returned to the UK and a further posting abroad is unlikely to occur in the foreseeable future.
If the applicant is the spouse of civil partner of a member of the armed forces and does not have the citizenship of the country to which the couple are (or are likely to be) posted you can grant the application if the:
applicant meets the good character and Knowledge of language and life in the UK (KoLL) requirements
spouse or civil partner is serving abroad, or is likely soon to be posted abroad in Crown or designated and was recruited to the service in question in the UK
The employing organisation must provide information about the applicant’s general character and suitability.
If the applicant’s spouse is a British citizen in the Diplomatic Service, you must normally waive the residence requirements if:
the application is supported by the Foreign and Commonwealth Office
on the date of application, the British citizen spouse or civil partner is in
Diplomatic Service employment, and was recruited to that service in the UK
at the time the application is being considered, the British citizen spouse or civil partner is likely to continue in diplomatic service employment for the foreseeable future
the applicant is aged 18 or over, is of full capacity
the applicant meets the good character and KoLL requirements the marriage has subsisted for at least 3 years on the date of application
This Annex tells you about European Economic Area (EEA) and Swiss nationals and their family members who applied before 1 July 2021, and whether they were free of immigration time restrictions.
For people applying before 31 December 2020, EEA and Swiss nationals and their family members were free of immigration time restrictions on the date of application if they:
held permanent residence under the EEA Regulations – they must have been issued with a permanent residence card / document to apply for naturalisation
had been granted indefinite leave to remain under the Immigration Rules
(including under the EU Settlement Scheme (EUSS)) – where an applicant wishes to rely upon permanent residence to demonstrate an earlier entitlement, they will need to have a permanent residence card
were entitled by virtue of diplomatic status to exemption from UK immigration control
benefitted under the Common Travel Area provisions as Irish nationals
For people who applied between 1 January 2021 and 30 June 2021, EEA and Swiss nationals and their family members were free from immigration time restrictions on the date of application if they:
had Indefinite leave to remain (ILR) under the EUSS – if so, they must rely on that to show that they are free from immigration time restrictions – (they can show that they have been free from immigration time restrictions for 12 months before applying using current EUSS leave and permanent residence they previously held under the EEA Regulations)
had been granted indefinite leave to remain under the Immigration Rules on another basis
had a permanent residence right – if they do not have EUSS leave on the date of application – they will need a permanent residence card/document to apply for citizenship on this basis, but will not be able to apply for such a document if they do not already have one
were entitled by virtue of diplomatic status to exemption from UK immigration control
benefitted as an Irish national
For further information, see the guidance on European Economic Area and Swiss nationals free movement rights.
This annex tells you who is in breach of the immigration laws and when to exercise discretion over periods of breach. You must use this information where new information has come to light which, had it been known at the time, might have affected the decision to grant indefinite leave, or lead to revocation of Indefinite leave to enter (ILE) / Indefinite leave to remain (ILR).
‘Breach of the immigration laws’ for the purpose of the residence requirements refers only to unlawful residence. It does not include contravening immigration law in any other way, but this is considered as part of the good character requirement. However, it can include being in the UK without meeting an additional requirement, such an EU, European Economic Area (EEA) or Swiss national not holding comprehensive sickness insurance if they needed to.
The following people are not in breach of immigration laws:
people with right of abode in the UK
people with leave to enter to remain, including status under the EU Settlement Scheme (EUSS)
citizens of Ireland
crew of ships or aircraft
people who are exempt from immigration control
people who have disembarked at a UK port but are still in the immigration control area or have been detained or given immigration bail
People who were entitled to reside in the UK without leave under the EEA Regulations 2016 were lawfully resident in the UK whilst the Regulations were in force. They needed to apply to the EUSS before 30 June 2021 to avoid being in the UK unlawfully.
A person who is in the UK and does not meet any of the above criteria will be in breach, as defined in section 50A of the British Nationality Act.
A person with limited leave to enter or remain under the immigration rules who makes an ‘in-time’ application for further leave has their leave extended:
until the decision is served or the application is withdrawn
while an appeal could be brought (until their ‘appeal rights are exhausted’)
while an appeal is pending
Citizenship applications, however, are made under the British Nationality Act 1981 and not under the immigration rules. It is consequently not possible to vary an application from one for leave, to one for citizenship. Making a citizenship application
does not give permission to stay in the UK. Applicants need to have valid leave until they have both received a decision on their nationality application and attended their naturalisation ceremony.
Further information can be found in the 3C and 3D leave guidance.
EEA and Swiss nationals and their family members need to demonstrate they have been here lawfully during the 3- or 5-year qualifying period.
When considering whether an EEA or Swiss national, or their family member, was in the UK lawfully in the 3- or 5-year period before making their application, you may need to consider 3 different time periods:
time before 1 January 2021- before the UK left the EU and the “transition period”
time between 1 January 2021 and 30 June 2021 – the “Grace period”
time from 1 July 2021 onwards – after the end of the Grace period; – EEA residential rights will no longer be valid unless they had been extended by making an in-time application to the EUSS that had not been resolved on the date the individual applied for citizenship
Following the United Kingdom’s departure from the European Union on 31 January 2020, there was a transition period, agreed as part of the Withdrawal Agreement, until 31 December 2020. Until 31 December 2020 an EEA or Swiss national, or their family member, would be in the UK lawfully if they were relying on:
an EEA right of residence
leave to remain granted under the Immigration Rules, including status under the EUSS
If an EEA or Swiss national or their family member had a permanent residence card, you can accept that they were lawfully present in the UK for the 5-year period before it was issued. They will be able to rely on the permanent residence card to cover the period until 30 June 2021, unless they have been granted status under the EU Settlement Scheme. This is provided they have not lost their permanent residence, for example by being out of the UK for more than 2 years. Until 30 June 2021, the application form asked the applicant to enter their permanent card number along with the date of issue. This will give you details of their lawful stay in the UK.
The EUSS allows EEA and Swiss nationals and their family members who are resident in the UK prior to 31 December 2020 (or future family members who join a resident EEA or Swiss national after 31 December 2020 where the relationship existed at that point and continues to exist) to obtain the UK immigration status they need in order continue living and working in the UK after 30 June 2021.
EEA and Swiss nationals only need to complete 3 key steps as part of their application to the scheme – prove their identity and nationality, show that they were resident in the UK and Islands by 31 December 2020, and declare any criminal convictions. Where the applicant chooses to provide their National Insurance number, their presence in the UK will be assessed on an automated basis using data held by HM Revenue & Customs and the Department for Work and Pensions.
An EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK and Islands when they apply to the EU Settlement Scheme will be eligible for settled status (provided they also meet any other relevant eligibility and suitability criteria). Those with a continuous qualifying period of less than 5 years’ will be eligible for pre-settled status (provided they also meet any other relevant eligibility and suitability criteria). A person who is granted pre-settled status can then apply for settled status as soon as they meet the eligibility criteria for it.
However, this grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they were here lawfully, as defined by the British Nationality Act 1981, under the EEA Regulations during that time, as this is not a requirement of the EU Settlement Scheme. You may, therefore, need to request further information from the applicant to demonstrate this.
The naturalisation application form (Form AN) asks for information to confirm the applicant was lawfully in the UK for the relevant 3- or 5-year qualifying period.
A person granted status under the EUSS may have had dual running rights under both UK immigration rules (in accordance with their grant of status) and the EEA Regulations during their residence. To assess whether the person was here lawfully in accordance with the EEA Regulations (if required) prior to their grant of pre-settled or settled status you must look at the guidance on EEA/Swiss nationals and their family members. This includes the type of evidence you can take into account. You must assess whether the applicant was lawfully resident under the EEA Regulations in accordance with that guidance and therefore lawfully in the UK for any residence prior to the grant of pre-settled status or settled status.
If the information is not provided with the application form, you must request it.
You must assess whether the individual has been here lawfully during their 3- or 5- year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:
as a qualified person (such as a worker, student, self-employed, self-sufficient, retired or incapacitated person)
as the family member of such a person
Evidence of this can include Advanced Passenger Information (API) data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI).
The European Economic Area (EEA) Regulations require that the following
categories must have held CSI to have been a qualified person:
self-sufficient person
student
family member of a self-sufficient person or student
The Court of Justice of the European Union (CJEU) held in the case of VI v HM Revenue and Customs C-247/20 (10 March 2022) that once an individual was “affiliated” to the NHS, they had CSI under the Free Movement Directive (or the equivalent under earlier Regulations)
“Affiliated” to the NHS was not defined by the CJEU but is considered to mean entitled to comprehensive and free NHS treatment. Under domestic law, an individual has such an entitlement when they are “ordinarily resident” in the UK. As a result, if an individual was ordinarily resident in the UK, they will be considered to have held CSI.
For those EEA and Swiss applicants who have been studying in the UK, or here as a self-sufficient person, you must check the guidance on European Economic Area nationals: qualified persons, to see what evidence is required to demonstrate that they were here lawfully.
Information on CSI and how an individual can show that they held it can be found in the guidance on European Economic Area nationals: qualified persons. This includes how a person can do so by being “affiliated” to the NHS.
Following the case of VI v HM Revenue and Customs (see above) a person who was ordinarily resident in the UK will be considered to have held CSI. “Ordinarily resident” means that an individual’s residence in the UK is voluntary, lawful and for a settled purpose. The approach to assess whether an individual was ordinarily resident in the UK for free movement purposes is set out in guidance on European Economic Area nationals: qualified persons.
If a person cannot demonstrate that they had CSI, you must consider why they did not hold it. Where someone has been granted ILR under the EUSS but has not been resident here in accordance with the EEA regulations (prior to grant of pre-settled status or settled status) due to a lack of comprehensive sickness insurance you should consider whether it is appropriate to exercise discretion in their favour.
Some applicants will have previously had an application for a document to confirm their permanent residence refused, based on not having CSI. You must assess whether they would have qualified following the VI judgement. If not, you must consider the reasons given, and why they did not then obtain it, and consider whether there are compelling grounds to exercise discretion. (Should they make a new application, we do not have agreement to revisit old decisions, including reconsideration.)
From 1 January 2021, a person who has EUSS leave – whether settled or pre- settled status – is in the UK only on the basis of that immigration leave which they hold. They must use their EUSS status to show that they were lawfully resident for the period after they were granted that status.
From 1 January 2021 until 30 June 2021, during the “Grace Period”, a person who does not have EUSS leave could still rely on an EEA residence right to reside here lawfully but could not apply for a document confirming that right. If they do not already hold a permanent residence document, they were, therefore, not able to apply to naturalise without first gaining EUSS ILR. However, in any subsequent naturalisation application, they would still be able to provide evidence that they were exercising an EEA right prior to the grant of EUSS ILR to show that they were lawfully resident throughout the relevant residential period. They would not need a permanent residence document but may supply one if it supports their application.
For further information see the guidance on European Economic Area (EEA) and Swiss Nationals: Free Movement Rights.
From 1 July 2021 onwards, EEA and Swiss nationals will normally provide evidence of their EUSS ILR or any other ILR they might hold, as part of their naturalisation application, demonstrating they are free from immigration time restrictions.
The one exception is if they held a document certifying permanent residence or a permanent residence card before submitting their in-time EUSS application. In this instance, their permanent residence will extend their permission to stay whilst their EUSS application remains outstanding. Should such individuals apply to naturalise after 30 June 2021 but before receiving a decision on their EUSS claim, they can use their permanent residence card to do so.
There may be applicants who would like to naturalise as British citizens who have been resident in the UK since before the introduction of permanent residence in 2006 and are therefore free from time restrictions. The applicant is asked on the application form to indicate how they have acquired the status ‘free from time restrictions’. Such people would be here lawfully unless they lost ILR through excessive absences from the UK.
People who were in the UK in accordance with EU law may have acquired permanent residence at some point, despite not having a document. A right to reside under EU law exists automatically where the terms of the EEA Regulations are met. If they had time periods where they were not here in accordance with the EEA Regulations you must determine if they were here lawfully on the basis that they had previously acquired permanent residence and were no longer required to meet certain requirements, such as being a qualified person.
This section tells you how to consider applications from former asylum seekers. These will normally fall into 3 categories.
Applicants who claimed asylum immediately on arrival in the UK and were granted temporary admission or immigration bail pending determination of their claim will not have been in breach of the immigration laws while their application was being considered or during consideration of any in-time appeals. Even if their application is refused and any subsequent appeal dismissed, the applicant will still not have been in breach, until their temporary admission or immigration bail was revoked and their leave to enter was formally refused.
Applicants who claimed asylum during a period of leave to enter or remain in the UK were not in breach of the immigration laws during consideration of their asylum claim and any in-time appeals. However, if the application was refused and the appeal dismissed, they will normally have been given 28 days’ further leave to remain. They will have been in breach if they remained in the UK after that 28-day period. This also applies to cases where the applicant was granted leave to enter or remain under a Humanitarian Evacuation Programme (HEP).
Applicants who made an asylum claim whilst in the UK illegally (for example, as an overstayer or following clandestine entry), will have been in the UK in breach of the immigration laws until they were granted leave to remain in the UK. They will be in breach throughout the period when the application (and any subsequent appeal) was being considered. This will have been the case whether or not they were given temporary admission or immigration bail following detection.
There is some discretion, in the special circumstances of a particular case, to disregard breaches of the immigration laws (unlawful residence) during the qualifying period. Such breaches only involve being here without leave to enter or remain.
Other immigration offences, such as breaching a restriction on taking employment and harbouring other immigration offenders, should not be considered under the residence requirement, but under the good character requirement.
It will normally be clear from case-working systems if a person is or has been in breach. Where this is in doubt, you must obtain the applicant’s previous files and seek advice from your senior caseworker if necessary.
You should only exercise discretion to disregard a period of unlawful residence if there are reasons for this which were clearly outside the applicant’s control, or if the breach was genuinely inadvertent and short.
A person may also be in breach if they have not complied fully with all the requirements of the route they are on. Following the introduction of the EUSS, you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications, you should consider all the facts surrounding such a breach and make a full assessment about whether discretion should be exercised in their favour.
Examples of when you might exercise discretion include where:
the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave
the EUSS application of an EEA or Swiss citizen (or their close family member) was submitted after 30 June 2021 but was later accepted as having reasonable grounds for missing the deadline and was resolved successfully
the applicant was given permission to stay as an ‘exceptional assurance’ because of their inability to leave the UK or apply for an extension of stay due to the COVID-19 pandemic
the applicant was a victim of domestic violence whose abusive partner prevented the renewal of leave
the applicant had made an ‘in-time’ application, but the application was rejected and so they became in breach:
the person had made a late application for leave to remain which was subsequently granted and either the:
application was not submitted more than 28 days after the expiry of their previous leave and before 24 November 2016
application was not submitted after more than 28 days overstaying if it was an asylum application
person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or bereavement
period of overstaying ended on or after 24 November 2016 and leave was granted in accordance with paragraph 39E of the Immigration Rules
the person arrived the UK clandestinely but either presented themself without delay to the immigration authorities or was detected by the immigration authorities shortly after arrival:
the maximum period involved should normally be 1 month, but may be longer if there are extenuating circumstances
in these cases, you can waive the breach that occurred from entry until the person’s first application for leave or asylum was determined, provided the application was granted
an application for asylum or leave to remain was refused but was later acknowledged to be an incorrect decision and the appropriate leave was granted
the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour
You should not exercise discretion to disregard a period of unlawful residence in any other circumstances, and particularly not when the breach was both substantial and deliberate.
This includes:
unlawful residence after the person tried to regularise their stay (except in the cases referred to above)
unlawful residence where a person who had deliberately entered or remained in the UK without permission was granted leave under the former 14-year long residence policy or under a concession (unless refugee status was granted as a result)
You must not use this discretion for breaches other than unlawful residence during the qualifying period such as working in breach of conditions, or failure to observe reporting requirements. Where the residence requirement is met with or without the exercise of discretion, it is then a separate test whether the person meets the good character requirement, and a history of non-compliance with immigration requirements is a factor to be weighed in that decision.
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