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Borders, Citizenship and Immigration Act 2009

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40Application requirements: family members etc.E+W+S+N.I.

This section has no associated Explanatory Notes

(1)In section 6 of the British Nationality Act 1981 (c. 61) (acquisition of British citizenship by naturalisation), in subsection (2), for “is married to a British citizen or is the civil partner of a British citizen” substitute “ has a relevant family association ”.

(2)After that subsection insert—

(3)For the purposes of this section and Schedule 1, a person (“A”) has a relevant family association if A has a connection of a prescribed description to a person of a prescribed description.

(4)If in the special circumstances of any particular case the Secretary of State thinks fit, the Secretary of State may for the purposes of subsection (3) treat A as having a relevant family association on the date of the application although the relevant family association ceased to exist before that date.

(3)For paragraph 3 of Schedule 1 to that Act (requirements for naturalisation as a British citizen under section 6(2) of that Act) substitute—

3(1)Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person (“A”) who applies for it—

(a)the requirements specified in sub-paragraph (2) of this paragraph;

(b)the requirement specified in sub-paragraph (3) of this paragraph;

(c)that A is of good character;

(d)that A has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and

(e)that A has sufficient knowledge about life in the United Kingdom.

(2)The requirements referred to in sub-paragraph (1)(a) are—

(a)that A was in the United Kingdom at the beginning of the qualifying period;

(b)that the number of days on which A was absent from the United Kingdom in each year of the qualifying period does not exceed 90;

(c)that, subject to sub-paragraph (5)—

(i)A had a relevant family association for the whole of the qualifying period, and

(ii)A had a qualifying immigration status for the whole of that period;

(d)that on the date of the application—

(i)A has probationary citizenship leave, or permanent residence leave, based on A's having the relevant family association referred to in section 6(2), or

(ii)A has a qualifying CTA entitlement or a Commonwealth right of abode; and

(e)that A was not at any time in the qualifying period in the United Kingdom in breach of the immigration laws.

(3)The requirement referred to in sub-paragraph (1)(b) is—

(a)that A's intentions are such that, in the event of a certificate of naturalisation as a British citizen being granted to A, A's home or (if A has more than one) A's principal home will be in the United Kingdom;

(b)that A intends, in the event of such a certificate being granted to A, to enter into, or continue in, service of a description mentioned in sub-paragraph (4); or

(c)that, in the event of such a certificate being granted to A—

(i)the person with whom A has the relevant family association referred to in section 6(2) (“B”) intends to enter into, or continue in, service of a description mentioned in sub-paragraph (4); and

(ii)A intends to reside with B for the period during which B is in the service in question.

(4)The descriptions of service referred to in sub-paragraph (3) are—

(a)Crown service under the government of the United Kingdom;

(b)service under an international organisation of which the United Kingdom, or Her Majesty's government in the United Kingdom, is a member; or

(c)service in the employment of a company or association established in the United Kingdom.

(5)Where the relevant family association referred to in section 6(2) is (in accordance with regulations under section 41(1)(a)) that A is the partner of a person who is a British citizen or who has permanent residence leave—

(a)the requirement specified in sub-paragraph (2)(c)(i) is fulfilled only if A was that person's partner for the whole of the qualifying period, and

(b)for the purposes of sub-paragraph (2)(c)(ii), A can rely upon having a qualifying immigration status falling within paragraph 4A(1)(a), (b) or (c) only if that partnership is the relevant family association upon which the leave to which the status relates is based.

(6)For the purposes of sub-paragraph (5), A is a person's partner if—

(a)that person is A's spouse or civil partner or is in a relationship with A that is of a description that the regulations referred to in that sub-paragraph specify, and

(b)the marriage, civil partnership or other relationship satisfies the conditions (if any) that those regulations specify.

(7)For the purposes of sub-paragraph (5), the relationship by reference to which A and the other person are partners need not be of the same description for the whole of the qualifying period.

(4)For paragraph 4 of that Schedule substitute—

4If in the special circumstances of any particular case the Secretary of State thinks fit, the Secretary of State may for the purposes of paragraph 3 do all or any of the following, namely—

(a)treat A as fulfilling the requirement specified in paragraph 3(2)(b), although the number of days on which A was absent from the United Kingdom in a year of the qualifying period exceeds 90;

(b)treat A as having been in the United Kingdom for the whole or any part of any period during which A would otherwise fall to be treated under paragraph 9(1) as having been absent;

(c)treat A as fulfilling the requirement specified in paragraph 3(2)(c)(i) (including where it can be fulfilled only as set out in paragraph 3(5)) where a relevant family association of A's has ceased to exist;

(d)treat A as fulfilling the requirement specified in paragraph 3(2)(c)(ii) (including where it can be fulfilled only as set out in paragraph 3(5)) where A has had a qualifying immigration status for only part of the qualifying period;

(e)treat A as fulfilling the requirement specified in paragraph 3(2)(d) where A has had probationary citizenship leave but it expired in the qualifying period;

(f)treat A as fulfilling the requirement specified in paragraph 3(2)(e) although A was in the United Kingdom in breach of the immigration laws in the qualifying period;

(g)waive the need to fulfil either or both of the requirements specified in paragraph 3(1)(d) and (e) if the Secretary of State considers that because of A's age or physical or mental condition it would be unreasonable to expect A to fulfil that requirement or those requirements;

(h)waive the need to fulfil all or any of the requirements specified in paragraph 3(2)(a), (b), (c) or (d) (including where paragraph 3(2)(c) can be fulfilled only as set out in paragraph 3(5)) if—

(i)on the date of the application, the person with whom A has the relevant family association referred to in section 6(2) is serving in service to which section 2(1)(b) applies, and

(ii)that person's recruitment for that service took place in the United Kingdom.

(5)After that paragraph insert—

4A(1)Subject to paragraph 3(5), a person has a qualifying immigration status for the purposes of paragraph 3 if the person has—

(a)qualifying temporary residence leave based on a relevant family association;

(b)probationary citizenship leave based on a relevant family association;

(c)permanent residence leave based on a relevant family association;

(d)a qualifying CTA entitlement; or

(e)a Commonwealth right of abode.

(2)For the purposes of paragraph 3 and this paragraph, the leave mentioned in sub-paragraph (1)(a), (b) or (c) is based on a relevant family association if it was granted on the basis of the person having a relevant family association.

(3)A person who is required for the purposes of paragraph 3 to have, for the whole of the qualifying period, a qualifying immigration status and a relevant family association need not, for the whole of that period—

(a)have the same qualifying immigration status; or

(b)(subject to paragraph 3(5)) have the same relevant family association.

(4)Where, by virtue of sub-paragraph (3)(a), a person relies upon having more than one qualifying immigration status falling within sub-paragraph (1)(a), (b) or (c)—

(a)subject to paragraph 3(5), it is not necessary that the leave to which each status relates is based on the same relevant family association, and

(b)in a case where paragraph 3(5) applies, the relationship by reference to which the persons referred to in paragraph 3(5) are partners need not be of the same description in respect of each grant of leave.

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