An adult who is not a British citizen can apply to become one. This process is known as naturalisation.

People will normally be eligible to apply for naturalisation under section 6 of the British Nationality Act 1981 if they meet certain requirements. These include residence requirements.

The basic residence requirement is that applicants have to have spent a certain period of time in the UK before they are eligible to apply for citizenship:

• Three years’ residence for spouses of British citizens
• Five years’ residence for non spouses

There are also other aspects to the residence requirements for naturalisation:

• Only a certain number of absences from the UK are permitted during those periods
• The residence must be lawful
• The person must have been present in the UK five years before the application date
• The person must be free of immigration restrictions, usually meaning possession of indefinite leave to remain or permanent residence (because both of these generally take five years, that makes the minimum residence period five years in practice even for spouses)

This post looks at the requirement that residence in the UK must be lawful.

Any time spent in the UK while in breach of immigration law will not count towards the qualifying residence period. Where residence in breach of immigration laws does occur, it will reset the clock and the residence period restarts once residence becomes lawful again.

What counts as a breach of immigration laws?

The official nationality guidance confirms that any person who has entered the United Kingdom but does not have leave to enter or remain is deemed, for the purposes of the British Nationality Act 1981, to be in the UK in breach of the immigration laws.

The BNA 1981 specifically and exhaustively defines “in breach of immigration laws” at section 50A as a person who is

1. in the United Kingdom;
2. does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971;
3. does not have leave to enter or remain in the United Kingdom (whether or not the person previously had leave);
4. does not have a qualifying Common Travel Area entitlement;
5. is not entitled to reside in the United Kingdom by virtue of any provision made under section 2(2) of the European Communities Act 1972 (whether or not the person was previously entitled);
6. is not entitled to enter and remain in the United Kingdom by virtue of section 8(1) of the Immigration Act 1971 (crew) (whether or not the person was previously entitled); and
7. does not have the benefit of an exemption under section 8(2) to (4) of that Act (diplomats, soldiers and other special cases) (whether or not the person previously had the benefit of an exemption).

The Home Office guidance document Naturalisation as a British citizen by discretion helpfully sets out those who are not considered to be in the UK in breach of immigration law:

1. People with the right of abode in the UK;
2. People with leave to enter or remain;
3. Citizens of the Republic of Ireland who last arrived in the UK on a local journey from the Republic of Ireland;
4. People who are entitled to reside in the UK without leave under EU law as extended by the European Economic Area Agreement;
5. Crew of ships or aircraft;
6. People who are exempt from immigration control;
7. People who have disembarked at a United Kingdom port but are still in the immigration control area or have been detained or given “temporary admission” pending a formal decision on their eligibility to enter.

In addition, where a person makes a valid and in-time immigration application their leave is extended by section 3C of the Immigration Act 1971

• until the decision is served or the application is withdrawn
• while an appeal could be brought
• while an appeal is pending

This can be a complex area of law and legal advice may be needed if there is an issue around whether section 3C leave existed or not.

When might discretion be exercised despite a breach?

There are some requirements for naturalisation which are set in stone and which cannot be overlooked or waived by Home Office officials even if they are sympathetic. There are other requirements which officials are empowered by the statute to waive. This is referred to as a “discretion”.

Residence not in breach of immigration laws is one such requirement which can be waived.

Officials are instructed by their guidance that discretion should only be exercised where the reasons for the breach “were clearly outside the individual’s control, or if the breach was genuinely inadvertent and short”.

Examples are given in the guidance to officials:

• the breach occurred at a time when the applicant was a minor whose parents failed to obtain or renew their leave
• 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
  • this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016
• 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

Discretion will never be exercised by the Home Office where the breach was “both substantial and deliberate”. As far as the Home Office is concerned, this includes where a person unsuccessfully attempted to apply for leave to remain in the UK then remained unlawfully, or in cases of unlawful residence leading to a grant of leave under the former 14-year rule or a concession. An exception may be made where the person was granted refugee status as a result. By extension the same approach would probably be applied to periods of unlawful residence ending in regularisation under the private life sections of the Immigration Rules.

The Home Office takes the view that EEA nationals physically present in the UK but who do not have a right of residence under Directive 2004/38 are resident in breach of immigration laws. This is made clear in Home Office policy document European Economic Area (EEA) and Swiss nationals: free movement rights. Page 27 sets out examples of how this approach is considered by the Home Office to work in practice:

This page provides example scenarios on when a European Economic Area (EEA) national is considered in breach of the immigration laws for the purposes of the British Nationality Act 1981 (BNA 1981).

Scenario 1

Paolo, an Italian citizen, came to the UK for employment in 1997. He voluntarily left work on 1 December 2000. No deportation or removal order was made against him, and he has remained without any right of residence under community law [meaning EU law], and without leave, ever since. Paolo has been in the UK in breach of the immigration laws only since 7 November 2002, when section 11 of the Nationality, Immigration and Asylum Act 2002 came into force. His residence here between 1 December 2000 and 6 November 2002, although unauthorised, should not be regarded as a breach.

Scenario 2

Sabine, a French citizen, enrolled as a student in October 1990. Her course ended in June 1993. She then remained in the UK without leave and without any entitlement under community law. No deportation or removal order was made against her. In 1996 she commenced employment, and this has continued to the present day. Sabine should not be treated as having been in the UK in breach of the immigration laws at any time.

Scenario 3

Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigration laws.

Whether the Home Office approach is correct as a matter of law is questionable. It could be argued that Articles 20 and 21 of the Treaty on the Functioning of the European Union give a right to be physically present in another member state. However, any legal challenge is likely to be stressful and expensive; success can never be guaranteed.

This post is an edited extract from the Free Movement ebook “Naturalising as a British citizen: a guide“. The ebook covers all the criteria for naturalisation with worked examples of common issues. It is available to download free to members, or for £9.99 for non-members.