Ilhaan Dirshe

Removal of the automatic citizenship ban

8th August 2024 By Ilhaan Dirshe

Whilst there have been several updates to immigration law and policy since the change in government on 4 July 2024 – such as the end of the Rwanda policy and the announcement that the Bibby Stockholm barge will be closed – what may have been missed are the amendments to the Illegal Migration Act 2023 (IMA 2023) concerning the ‘citizenship ban’.

On 24 July 2024, the Home Office published The Illegal Migration Act 2023 (Amendment) Regulations 2024, which is a statutory instrument annulling aspects of the IMA 2023. Although these regulations brought in a number of changes, I will be focusing on the removal of the citizenship ban.

Section 32 to 37 of the IMA 2023 stated that individuals who entered the UK through ‘illegal and irregular means’ on or after 7 March 2023 were ineligible for British citizenship. This was a blanket ban which excluded all individuals from British citizenship if they meet certain conditions outlined in Section 2 of the Act. If an individual met any of these conditions on or after 7 March 2023, then they were automatically banned forever from obtaining British citizenship. It did not matter that their asylum claims were accepted and they were subsequently granted refugee status. Most alarmingly, this even included unaccompanied minors and children travelling with family.

Regulation 3 of the 2024 amendments has now removed this draconian ban on British citizenship, which is a positive step in the right direction. What would further cement these changes is for the IMA 2023 to be repealed completely through primary legislation, rather than statutory instruments.

This change is a welcome recognition that migrants who have entered the UK fleeing conflict and violence deserve our compassion and should not be penalised once in the UK because of their manner of entry. They should be able to obtain British Citizenship under the same rules as other migrants. An acknowledgement of this basic position is especially important in light of the recent violent disorder. It is extremely important to make clear that we condemn the racism, bigotry and islamophobia which has been demonstrated.

If you would like to discuss your eligibility for British citizenship, please do not hesitate to contact us using our online enquiry form or by calling us on 020 7401 6887.

Immigration Health Surcharge Rises

19th January 2024 By Ilhaan Dirshe

You usually need to pay the Immigration Healthcare Surcharge (IHS) if you are applying for a visa for more than 6 months from outside the UK, or making an immigration application for any length of time from within the UK. You do not need to pay if you are applying for indefinite leave to remain (permanent residence).

On 6 February 2024, there will be a substantial rise in the IHS – from £624 per year for most applicants, up to £1,035. For children and students, the rise is from £470 per year to £776. Therefore, if an application is for leave to remain for 2.5 years (which is frequently the case), the surcharge for adults will be £2,587.50.

Even before these rises, it is often extremely expensive to make an immigration application. For example, the basic fee for a spouse entry clearance visa is £1,846 and the current IHS is £1,872. From 6 February 2024, the IHS for this application will be £3,105, meaning the total fee will be £4,951. This is before an applicant pays for any optional services, such as the priority or keep their passport while applying service.

Applicants who are in the position to submit their online application forms before the fee rise comes into place may be well advised to do so, and there is a helpful article on the wonderful Free Movement website. Of course, for some, the rise will come before they can make their next application and they will be forced to pay the higher fees.

Fee waivers (whole or partial) may be available for certain applications if the applicant cannot afford the fee. Fee waiver applications need to be well-evidenced and meet the guidance. No applicant can assume it will be easy to obtain a fee waiver.

These rises place an even greater financial burden on migrants and their British families in an immigration system which is already very expensive. They are unjust, but applicants will have no choice but to accept them.

If you would like advice on whether you can make an application prior to the increase, or if you could be eligible for a fee waiver, please contact us.

Electronic Travel Authorisation (ETA)

23rd March 2023 By Ilhaan Dirshe

The Home Office has established a new scheme which aims to ensure that all those travelling to the UK have permission to do so in advance.

The intention is that Electronic Travel Authorisation (ETA) will be a requirement for individuals who do not require a visa the UK for short stays. It provides permission to travel to the UK which is linked directly to the applicant’s passport. An approved ETA will be issued electronically and is valid for multiple entries on either a basis of two years, or until the expiry of the passport used to make the application, if earlier. If refused, the applicant will need to make an entry clearance application to travel to the UK.

This ETA allows travel to the UK for up to 6 months for tourism, visiting family and friends, business or study. It will also allow Creative Workers to come to the UK for up to three months and allows individuals to transit through the UK.

The introduction of ETAs will be done in stages. Stage 1 is for nationals of Qatar who intend to travel to the UK on or after 15 November 2023. Stage 2 is for nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia or the United Arab Emirates, who intend to travel to the UK on or after 22 February 2024. Although the Home Office has initially specified nationals of these countries, it seems that the aim is to make ETAs a requirement for individuals of all countries, including those from Europe and the US, by the end of 2024 as stated in this article.

The application will be made online using the UK ETA mobile app or the online application form, both of which are currently unavailable. The Home Office has stated that the standard processing time for ETA applications will be three working days. Information regarding the Home Office fee for this application, and the biometric enrolment process, have not been disclosed yet.

Further information on the validity requirements, suitability requirements and grounds for refusal regarding ETAs can be found from page 32 of the Statement of Changes in Immigration Rules dated 9 March 2023. Once this scheme comes into force from 12 April 2023, all the rules will be set out in Appendix Electronic Travel Authorisation.

Nationality by registration: special circumstances

16th September 2022 By Ilhaan Dirshe

The Nationality and Borders Act 2022 amended the British Nationality Act British Nationality Act 1981 (BNA 1981) and introduced a new discretionary route allowing adults to register as British citizens. This new provision came into force on 28 June 2022.

Section 4L Acquisition by registration: special circumstances outlines three new instances when the Secretary of State would grant citizenship to an adult. An adult can be registered if they would have been, or would have been able to become, a British citizen but for the following:

historical legislative unfairness
an act or omission by a public authority, or
exceptional circumstances relating to the applicant.

Historical legislative unfairness

‘Historical legislative unfairness’ is defined in the Act to include circumstances where previous legislation treated men and women differently, or treated children differently depending on the marital status of their parents. Other sections have already previously been introduced to the BNA 1981 to correct such historical discrimination, but this is a mopping up provision designed to fill any previous gaps in rectifying complex historical nationality legislation.

The Act and accompanying guidance focuses on unfairness rooted in protected characteristics, such as gender, although the definition of ‘historical legislative unfairness’ is not restricted and may leave open the possibility of seeking to make applications based on other types of unfairness.

Act or omission of a public authority

Section 4L (1) (b) allows for registration of an adult where the applicant missed out on being or becoming a British citizen as a result of an act or omission of a ‘public authority’. Examples could include where an applicant was previously issued a British passport in error for many years, only coming to light after they had lost a previous entitlement to register as British; or a local authority failing to apply to register a child in their care as British where they were eligible to do so.

Exceptional circumstances

Finally, Section 4L (1) (c) allows for registration in ‘exceptional circumstances’. These must not only relate specifically to the applicant, but there must also be a clear causal link between these exceptional circumstances and the individual’s inability to become a British citizen. The guidance has made it clear this is not a last resort should you fail to meet other requirements, and the example provided is a parental child abduction case, which prevented the individual from becoming a citizen. This would not have been an exceptional circumstance had the family decided to move elsewhere, but the fact that it was outside the control and without the consent of one of the parents, means it falls under the scope of exceptional circumstances. Another example is young persons who are adopted in the UK after they turn 18 years old, but where the adoption proceedings started while they were a minor. Under the BNA 1981, a child adopted in the UK will automatically become a British citizen if one of the adopters is British, but only while they are still a minor. This conflicts with adoption law which allows an adoption to take place beyond the age of 18, and the new s4L provides a route for such young people to benefit and register as British.

Application process

There is a new Form ARD for ‘special circumstances’ registration. Whether or not a fee is payable depends on whether the applicant would have acquired the status automatically but for the special circumstances (no fee is payable except the ceremony fee) or whether they would only have qualified for registration or naturalisation (in which case the full registration or naturalisation fee is due).

If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.