Citizenship

Soldiers

During Service, soldiers are exempt from immigration control under section 8(4)(a) of the Immigration Act 1971. This exemption means that you can apply for Citizenship without first requiring indefinite leave/settlement. However, as soon you discharge, you are no longer exempt and will need to apply for ILR before you can apply for Citizenship.

Spouses

Spouses will need indefinite leave (or settlement under the EU settlement scheme) in all cases before you can apply for Citizenship.

DO NOT make an application for Citizenship if you don’t have ILR/settlement as the application will be refused and you could become an overstayer.

Spouses making standard applications need to have held their ILR for 12 months. Spouses married to British Citizens just need to have ILR, they do not need to wait. Refer to the relevant sections on this website for information on how to gain ILR/settlement.

IMPORTANT – from 5 November 2015 you won’t be able to use ESOL qualifications as proof that you meet the KoLL requirement. Only qualifications on the UKVI SELT (Secure English Language Tests) list taken at an approved centre will be accepted, see below.

You can demonstrate your knowledge of language and life in the UK by:

• Passing the Life in the UK test,
  and either 
• having a recognised English test qualification from an approved test centre. You can’t use other qualifications, eg GCSEs, A levels or National Vocational Qualifications (NVQs). Functional Skills qualifications taken during Service can also not be used.
  or
• being a national of an English-speaking country
  or
• Having a degree (or post-graduate degree) which was taught in English. Only post-graduate diplomas will be accepted. GCSE’s and A-Levels are not accepted. You can also find out what evidence you need to provide at that link.

There is also more information about this in Booklet AN page 21 onwards.

What happens if my qualification has run out?
Some recognised test qualifications only last for 2 years.  However you can still use a B1 level qualification that’s run out if you’re applying for citizenship and it was accepted when you applied to settle in the UK. It doesn’t matter if the B1 level test you took isn’t on the list of recognised tests now. You don’t need to take another test. Unfortunately as most soldiers don’t need to apply for ILR, this won’t apply.  However it may apply to some spouses who had to have a B1 qualification to apply for ILR.

This is just a summary of how convictions affect an application for Citizenship. You are advised to read the guidance below for further information or contact us if you are concerned about how your conviction will impact you.

• UK: Guidance Form AN page 23 onwards
• UK: Good character: caseworker guidance

You must declare all convictions on a citizenship application, regardless of the date.

Having a criminal record does not necessarily mean that an application will be refused. However, a person who has not shown respect for, or is not prepared to abide by, the law is unlikely to be considered of good character. Caseworkers will consider on the balance of probabilities if you are of good character.

1. A person will normally* be refused if they:

• have received a custodial sentence** of at least 12 months in the UK or overseas
• have consecutive sentences totalling at least 12 months in the UK or overseas
• are a persistent offender who shows a particular disregard for the law
• have committed an offence which has caused serious harm
• have committed a sexual offence or their details are recorded by the police on a register

*Exceptional grants – an exceptional case is one where on the facts of the case, the application would normally be refused but there are mitigating circumstances which mean it would be appropriate to grant. Discretion is applied on a case-by-case basis.

**Custodial convictions include time spent in MCTC.

2. A person will not normally be refused if they:

• Have a custodial sentence of less than 12 months OR
• Have a non-custodial sentence** or out-of-court disposal recorded on their criminal record AND
• are of good character on the balance of probabilities (see below)

** non-custodial convictions include summary hearings/courts martial and any court-imposed fine (e.g. for speeding, assault or drink-driving). They do not include fixed penalty fines. They do include cautions and suspended sentences.

3. Considering the balance of probabilities

When convictions are declared, the caseworker will consider the following to decide if you are of ‘good character’ on the balance of probabilities:

• Length of time since offences
• Number of offences
• Period over which offences were committed
• The seriousness of the offence
• Any escalation in the seriousness of offences
• Nature of the offences
• Applicant’s age at the date of conviction
• Any mitigating factors (such as attempts to engage with programmes to address the cause of offending, voluntary work etc)

Pending convictions

If you have been charged with a criminal offence and are awaiting trial or sentencing, you are advised not to make any application for naturalisation until the outcome is known.

Fixed penalty notices

Fixed penalty notices, penalty charge notices and penalty notices for disorder are imposed by the police or other authorised enforcement officers for traffic rule violations, environmental and civil violations.

These do not go onto your criminal record and do not need to be included on your application. They will also not normally result in a refusal unless:

• You failed to pay a fine or,
• You unsuccessfully challenged the notice and there were subsequent criminal proceedings resulting in a conviction
• You have multiple fixed penalty notices over a short period of time which could indicate that you are not of good character

Spent convictions

Any ‘spent’ convictions must be included on your application as criminal offences are never spent for the purposes of immigration and nationality law. They will be considered alongside your ‘good character’ at the discretion of the caseworker.

Military convictions

Guidance has been published, which should make it much clearer to work out whether your conviction in a military court (whether a summary hearing or court martial) is considered to be criminal or disciplinary and how it will affect an application for citizenship.

You should read the guidance at GOV.UK: HM forces – criminality: caseworker guidance carefully.

If you are still unsure about your conviction, then you should speak to your chain of command (platoon officer or OC, discipline clerk or RAWO).

Family members

Changes which came into effect on 28 June 2022 now mean that any period of overstaying during your 5 (or 3) year qualifying period will no longer affect your application if you are a family member. This is as long as no concerns about your character have arisen since your grant of settlement.

Serving personnel

The change above only applies to people with indefinite leave. As serving personnel are ‘exempt from immigration control’ they are not considered to have indefinite leave and therefore the lawful residence requirement would still form part of their good character assessment in any application for Citizenship. We have discussed this with Nationality caseworkers who stressed that overstaying during the early parts of the residence requirement will not necessarily mean that an application will automatically be refused. This is because caseworkers are able to use discretion when considering nationality applications. The duration of the time without leave, the circumstances around how that period of unlawful residence occurred, as well as the length of Service since that gap in leave would all be taken into account in the consideration. If you were an overstayer prior to enlisting you should contact the F&C team for further advice.

Other immigration breaches

Other immigration breaches, such as illegal working or accessing public funds when you have no entitlement could lead to a refusal if the breach took place within the previous 10 years (before the date of decision).

The guidance booklet – GOV.UK: Nationality: good character requirement details other reasons why you may not meet the good character requirement. These include:

• NHS debt of £500 or more
• Bankruptcy
• Deception

You are advised to read the booklet to ensure your application will be successful.

Soldiers – soldiers applying on form AN are not required to show that they were in the UK at the start of the 5 year qualifying period. If you were serving overseas or were on training/deployment on the first day this will be treated as though you were in the UK.

IMPORTANT: This discretion does not apply to BN(O) passport holders applying on form B(OTA).  It also does not apply if you were out of the UK on a non-work related trip.

Spouses – still need to meet this requirement.

• If you are making a standard application then you must have been in the UK at the start of the 5 year residential requirement. The qualifying period starts 5 years before your application is received by UK. So for example if your application is received by UKVI on 1st December 2021, they will count the start of the 5 year qualifying period as the 2nd December 2016 and will look to see that you were in the UK then.
• If you are applying as the spouse of a British Citizen you must have been in the UK at the start of the 3 year residential requirement. The qualifying period starts 3 years before your application is received by UK. So for example, if your application is received by UKVI on 1st December 2021, they will count the start of the 3 year qualifying period as the 2nd December 2018 and will look to see if you were in the UK then.
• Although you can count all time spent overseas AFTER the first day as residence in the UK, you need to have been in the UK on this first date. If you were on an overseas assignment, your application will be refused.

If you are currently on an overseas assignment and the soldier is already British then you  may be able to make an application under the Crown Service rules which do not require you to have been in the UK on the 1st day. See below for further information.

Soldiers and spouses applying on the ‘standard route’

• Will need to have lived in UK or on overseas assignments for 5 years
• Time spent in the UK prior to enlisting will count
• Should not have spent more than 450 days outside the UK during the 5 years (unless it is service related absences)
• Should not have spent more than 90 days outside of the UK in the past 12 months (unless it is service related)

Spouses married to British Citizens

• Will need to have lived in UK or on overseas assignments for 3 years
• Should not have spent more than 270 days outside of the UK during the 3 years (unless it is service related absences)
• Should not have spent more than 90 days outside of the UK in the past 12 months (unless it is service related)

In a change to published guidance, UKVI has now reviewed their policy which previously prevented spouses of Gurkha soldiers from gaining Citizenship. Spouses are now able to apply for Citizenship even if the soldier is not British. Spouses must meet all requirements above, including the requirement to hold indefinite leave, the 5 year residential requirement and the ‘first day’ requirement. Overseas assignments will count as residence in the UK. Please contact the F&C team if you are unsure of your eligibility.

See GOV.UK: Apply for citizenship if you have indefinite leave to remain or ‘settled status’:

• ILR for 12 months
• Five years’ resident in UK (or on overseas assignments)
• See ‘Main Requirements’ above

Spouse of British citizen soldier:

• ILR
• Three years’ resident in UK (or on overseas assignments)
• See ‘Main Requirements’ above

Completing the online form – if you have spent more than 450/270 days out of the UK because you were accompanying the soldier on an overseas assignment complete the form as below. In the box write I do not meet the residence requirements because I have spent more than 450/270 days outside the UK due to Armed Forces Service. I have provided a letter which confirms this.  

You will need to provide a letter or some evidence which confirms the time you spent out of the UK was on assignment.

• Any child born legitimately in the UK to a parent who is in the Armed Forces is automatically a British Citizen. See MN1: Registration as a British citizen A guide about the registration of children under 18 – page 7
• To get a passport you will just need to make a normal application, though it may be advisable to include a letter from the soldier’s unit confirming the soldier’s employment and date of enlistment.
• It is not advisable to use a post office checking service as they will probably tell you your child is not eligible.

Children and adults are entitled to registration under section 1(4) of the British Nationality Act 1981 if:

• they were born in the UK
• they were not a British citizen at birth as at the time of birth neither parent was a British citizen nor settled in the UK
• they are aged 10 years or over on the date of the application
• they have lived in the UK for the first 10 years of their life
• they have not been outside of the UK for more than 90 days in each of the first 10 years of their life
• the Secretary of State is satisfied they are of good character

Apply using form MN1, select the option below:

Information can be found on page 8 of the guide MN1.

• If the child is born during an overseas assignment to British parents then the child will have full British Citizenship and can pass his/her Citizenship onto any children they have which are born overseas. You just need to apply for a passport for the child in the usual way.
• If the child is not born during an overseas assignment, the child will not have full Citizenship, he/she will be a British Citizen by descent only. Children born to parents who are British by descent have no automatic claim to British citizenship. The child is still entitled to a British passport. Please contact us if you require further information about this.

Please note – having settled status (ILR) or an exempt stamp does not mean that a child born abroad will be born British. Children of parents with an exempt stamp or ILR will only be born British if they are born in a qualifying British Overseas Territory (this does not include the Sovereign Base Areas of Akrotiri and Dhekelia) after 21 May 2002. The qualifying British Overseas Territories are: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St. Helena and Dependencies, South Georgia and the South Sandwich Islands, Turks and Caicos Islands and the Virgin Islands.

Children born after 13 Jan 2010: Children in these circumstances are eligible to be registered as a British Citizen under section 1(3A) of the British Nationality Act. They are not eligible for a British Passport until they have been registered. Select the relevant category highlighted below on the online form:

Children born before 13 Jan 2010: Eligible to be registered under section 1(3). Select the relevant category highlighted below on the online form:

Apply on form MN1.

Complete the application at GOV.UK: Apply to register as a British citizen: Form UKF.

All children of F&C personnel born outside the UK while their parent was/is on assignment are eligible to apply to be registered as British Citizens.

– If your child was born overseas after 13 January 2010 you need to select the option below on the form MN1.

– If your child was born overseas before 13 January 2010 you need to select the option below on the online form. It is also advisable to send the following document in with the application, see Nationality Notice 12/10.

– Your child will not be eligible for a British Passport until they have been registered as a British Citizen

– You will need to include a letter from the unit to confirm that the soldier was serving overseas at the time of birth, the date and place of birth of the child and the date and place of recruitment of the soldier.

– As of 1 April 2015 children born to non-British parents serving on an overseas assignment can be registered as British at public expense. For further information refer to 2015DIN01-130 ‘Family Migration Rules for UK Armed Forces family members who are Non-British’

*Please note: the child’s mother does not have to have been accompanying the soldier on the overseas assignment in order to be eligible to register. If the child was born in Ghana for example whilst the soldier was in Germany, he/she would also be eligible to register. However, if the child was born in Ghana whilst the soldier was serving in the UK, then it would not be eligible to register!

Most applications will be considered under section 3(1) of the British Nationality Act and registration will be at UKVIs discretion. For a list of criteria that are used to assess such applications, read page 27 onwards of the following caseworker guidance GOV.UK: Registration as a British citizen: children.

Main requirements:

• The child has ILR. The guidance for caseworkers above says ‘you should normally only register a child under section 3(1) who has not been granted ILR or permanent residence where there are strong compelling compassionate circumstances to do so.’*
• One parent should be a British citizen and the other should be settled or a British citizen (where the British citizen parent is the spouse, it is not necessary for the soldier to also be a British citizen as the exempt stamp acts as ILR). Parents with sole responsibility can apply once they are British themselves
• The child is of ‘good character’ if aged over 10.
• If the child is over 13 they have lived in the UK for at least 2 years (unless they were on an accompanied overseas assignment)

*However, if the child has lived in the UK for 10 years the requirement to have ILR is waived. It is usually expected that both the child and the parents are legally in the UK but these requirements may also be waived if the applicant is an older teenager and the child’s interests and strength of connection outweigh the fact that their parents are not here lawfully. Please contact the F&C team if you think this applies to your case.

Complete the form MN1 and select the following option: