Section 41: The qualifying period
161.Section 41 sets out the qualifying period for naturalisation as a British citizen.
162.Section 41(1) inserts a new paragraph 4B into Schedule 1 to the BNA 1981. This sets out what the qualifying period will be for naturalisation as a British citizen. The qualifying period is different depending on whether the applicant is applying under section 6(1) or (2) of the BNA 1981. For applicants applying under section 6(1) of the BNA 1981, the default qualifying period is eight years. For applicants applying under section 6(2) of the BNA 1981, the default qualifying period is five years. These periods can be reduced to six years or three years respectively if the applicant meets the activity condition. The activity condition is further defined in paragraph 4B(5).
163.According to paragraph 4B(1) the qualifying period is a period of years ending with the date of the application. This means the qualifying period must be a consecutive period of years. This means that a person cannot aggregate two periods of qualifying immigration status where they are separated by a period where the person did not hold such a status. Not all temporary leave falls under the definition of ‘qualifying temporary residence leave’ as set out in section 49(3) and so will not count towards the qualifying period. This definition is dependant upon the description of types of leave which can result in a grant of probationary citizenship leave which will be set out in the Immigration Rules. It is currently intended that a person who holds temporary residence leave as a worker for 2 years will have qualifying temporary residence leave. However, if that person chooses to become a full-time student (which will not be a form of qualifying temporary residence leave) and then returns to work , it is not possible to count the earlier period of 2 years during which they were working towards the overall qualifying period in a subsequent application for naturalisation. This person would start their qualifying period for naturalisation from the date they resumed working, that is when they hold a qualifying form of temporary residence leave.
164.Subsections (2) to (5) of section 42 amend section 41 of the BNA 1981, which relates to the Secretary of State’s regulation-making powers:
Section 41(2) inserts new regulation-making powers into section 41(1) of the BNA 1981. These enable the Secretary of State to make regulations amending the length of the qualifying period (including the length of time by which it may be decreased for meeting the activity condition), and for determining whether an applicant has met the activity condition (whether because they have carried out relevant activities or because they are deemed to have done so).
Section 41(3) inserts new subsections into section 41 of the BNA 1981 which relate to regulations about the activity condition. Such regulations can provide that meeting the activity condition will have no effect on the qualifying period, by making the qualifying period the same whether an applicant meets this condition or not (new section 41(1B)). The regulations can make provision about prescribed activities in relation to the time before commencement of this section (new section 41(1C)(a)). For example, regulations might provide for activities carried out prior to commencement of this section to count as prescribed activities. And regulations determining whether a person has or is to be treated as having participated in prescribed activities can also enable the Secretary of State to make arrangements for such persons as the Secretary of State thinks appropriate to determine whether, in accordance with the regulations, a person has participated or is to be treated as having participated in an activity (new section 41(1C)(b)). Under this last provision, the Secretary of State could for example enable others to verify that an applicant meets the activity condition.
Section 41(4) and (5) amend section 41 of the BNA 1981 setting out the Parliamentary procedure which applies to the new regulation-making powers.
