Do I need Indefinite Leave before applying for British Citizenship?

By 1st 4Immigration - #1 UK Immigration Experts -
One of the most common questions we are asked in our immigration practice. The short answer is: yes, you do. Although not everyone has to apply for an Indefinite Leave to Remain (ILR), everyone has to demonstrate that he/she has qualified for it. Sounds confusing? Read on.

Why is there a confusion at first place? Because the UK Visas & Immigration guidance says you need 5 years of residency in the UK and nothing specifically about Indefinite Leave. In fact, the rules for spouses and civil partners of UK citizens state only 3 years. As a result, many migrants apply for British Citizenship without securing an ILR first. In many cases one needs 5 years for an ILR anyway, so why to pay at least £1,000 extra for it? The prospect of applying straight for British Citizenship can indeed look very tempting. Predictably, the result is refusal and loss of the application fee.

The “having an ILR” requirement is “hidden” behind another rule: “you must be free of immigration restrictions”. Then there examples: having an ILR stamp in the passport, a BRP or a Home Office letter saying the same or a stamp called Right of Abode. This is why there is no Citizenship without an ILR.

For spouses and civil partners of UK citizens it has become even more confusing from 9 July 2012. That’s the date when the rules for an ILR were changed and the qualifying period was increased from 2 years to 5 years. This means the first ILR applications, involving these new rules, will be in July 2017.  However, the Citizenship guidance still states that spouses and civil partners of British citizens need 3 years in the UK (with the requirement of an ILR still intact and still “hidden”). We expect further confusion and perhaps an rise in refused applications from July 2015 onwards, ie the 3 years onwards from the new rules.

Furthermore, the rule of qualifying for an ILR applies to all. However, the rule of actually applying for it, and paying a fee and waiting for months, does not. EEA nationals and their direct family members (other than family members of UK citizens) do not have to make a formal application for an ILR, they just have to demonstrate that they have qualified for it.

For example, a spouse of a British citizen must apply and secure an Indefinite Leave before applying for Citizenship, even if he/she then can apply for naturalisation straight after that. However, a spouse of, say, Polish citizen does not have to. Spouses of EEA (non-UK) citizens can just demonstrate how they qualified for it, ie by residing in the UK for 5 years with their EEA spouse while the EEA spouse had been exercising Treaty rights. Of course all other requirements for Citizenship still have to be met in either case, we are only explaining the difference in applying for permanent residency.  

Or another example: an Australian working in the UK under the Points-Based System must make an application and secure an ILR after 5 years and then, in due course, can apply for naturalisation. However, a Spanish citizen can do the same but does not have to make an application for permanent residency, instead applying straight for Citizenship when the time comes.

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training. We have 2 training courses related to British Citizenship, both accredited for CPD and accepted by The OISC. One of the courses is focused on the rules for EEA nationals and their family members.

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