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LPC Elective, Immigration Law
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Immigration Law LPC elective Exam Notes ULaw 2020COMMONWEALTH CITIZENS WITH RIGHT OF ABODE
Parental Link (BNA 1981, s 2(1)(d)):
a) the person was CMWL Citizen on 31 December 1982 and continues to be a such; and
b) either parent was born in the UK.
“Parent” – does not include the father of an illegitimate child. (p.17)
Acquired by marriage (BNA 1981, s 2(2)):
a) the woman was CMWL Citizen on 31 December 1982 and continues to be a such; and
b) on or before 31 December 1982 she married a man who at the time of the marriage was
either:
(i) born, registered or naturalised in the UK, or
(ii) was a CMWL Citizen with a right of abode through a parental link.
Excluded Commonwealth nationals:
Cameroon, Mozambique, Namibia, Pakistan and South Afrika.
Commonwealth Citizens:
Antigua and Barbuda, Australia, Bangladesh, The Bahamas, Barbados, Belize, Botswana, Brunei,
Canada, Dominica, Fiji, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati,
Lesotho, Malawi, Malaysia, Malta, Mauritius, Nauru, New Zealand, Nigeria, Papua New Guinea,
Republic of Cyprus, Rwanda, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sri
Lanka, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Swaziland, Tonga,
Trinidad and Tobago, Tuvalu, Uganda, United Republic of Tanzania, Vanuatu, Zambia, Zimbabwe
British Citizenship
British otherwise than by descent (i.e. can pass on citizenship automatically to children
born in and outside the UK):
n Born in the UK prior to 1/1/83
n Born in the UK from 1/1/83 at time one parent is settled (s.1 BNA) n Naturalised and
registered (s.6 and 1(3))
British by descent (i.e. cannot pass on BC automatically to a child who is also born aboard)
às.2 BNA: born outside the UK to parents who are British otherwise by descent. But there is
provision for registration of such children in certain circumstances, required to register before age
of 18 years old (s.3 BNA)
Automatic citizenship àExist after the British Nationality Act 1981 (‘BNA’)
How is nationality acquired?
(Automatically) operation of law. Prior to 1 Jan 1983, persons born in the UK were automatically
BC. After that, a person would also require a parent to be settled or British at the time of their
birth in the UK (s.1 BNA) n Procedure: None, apply for British passport require one
(Entitlement): entitled to nationality if relevant criteria are met:
n Child to be subsequently registered as a BC if having been born in the UK their parent(s) become
settled or British at a later date but while they are under 18
(s.1(3) BNA) n A non-British child born in the UK who has spent the
first 10 years of his life in the UK is entitled to register as a BC (BNA s.1(4))
n Procedure: fulfil relevant requirement, complete registration form and fee.
(By discretion): SSHD has discretion, reference to ‘may’. For example n Naturalisation: s.6 and
Sch. 1 BNA 1981 n S.3(1): general discretion for minors
n Procedure: fulfil requirements, form, fee, if granted take oath and ceremony
NIAA 2002 amends the BNA to include fathers whether or not married to the matter (proof of
paternity will be required) (s.50 BNA (amended by s.9 NIAA 2002) à apply to children born after
the 1 July 2006.
n As of 6 April 2015 onwards, a child born before 1 July 2006 to an unmarried father who was a BC
at the time of the child’s birth will be able to apply for BC (s.65 IA 2014 & s.4E BNA 1981)
People born abroad
They can be a BC if he or she was:
,i. Born outside the UK before 1 Jan 1983 and his or her father was born in the UK (or adopted in the
UK by a UK citizen father) or his or her father was registered or naturalised as a BC in the UK
before the child’s birth. à Mothers could not automatically pass on citizenship before 1983 but
there were discretionary provisions for children of British mothers to be registered; or
ii. Born outside the UK after 1 Jan 1983 and his or her father or mother was born or adopted in the
UK or his or her father or mother was registered or naturalised as a BC before the child’s birth.
SUMMARY of British Citizenship
Born in UK before 1983 BC otherwise than By Decent
Born in the UK after 1982 and either parent a British BC otherwise than By Decent
citizen or settled in the UK
Born in the UK after 1982 and subsequently either BC otherwise than By Decent
parent becomes British citizen or settled in the UK
before applicant is 18
Born in the UK after 1982 and remains in the UK for BC otherwise than By Decent
the first 10y of life and is not absent for more than 90
days each year during that period
Born outside the UK before 1983 and father born, BC By Decent
registered or naturalised in the UK and married to
mother (or parents subsequently marry in a country
where that marriage operates to legitimise the child)
Born outside the UK before 1983 and mother born, BC By Decent
registered or naturalised in the UK and registered
child before reaches 18 (or Registered subsequently)
Born outside the UK after 1982 and either parent a BC By Decent
British citizen otherwise than by decent
Born outside the UK after 1982 and one parent is a BC By Decent
BC by decent; and the British parent has a parent
who is or was British otherwise than by decent; and
the British parent had at some time before the child’s
birth liven in the UK for continuous period of 3y, not
being absent for more than 270 days in that period.
Born outside the UK after 1982 and one parent is a BC otherwise than By Decent
BC by decent; and the British parent has a parent
who is or was British otherwise than by decent; and
the family lives in the UK during applicant’s childhood
for a continuous period of 3y, not being absent for
more than 270 days in that period.
Naturalised in UK BC otherwise than By Decent
Naturalisation
s.6 BNA à allows SSHD a grant a certification of naturalisation as a BC at her discretion.
n S.6(1): all other cases, or non spouse cases
n S.6(2): spouse case or both à i.e. when an applicant is married to a British national
Requirement for all applications: applicant must:
i. Be aged 18 or over; ii. Be of sound mind; iii. Be of good character (i.e. all convictions must
be spent, and convictions generally including those where a non custodial sentence is
imposed.);
different from application for indefinite leave
The UKVI Nationality instructions provide further guidance on this point and stipulate that a period
of three years should have elapsed since the date of conviction, in respect of non-custodial
sentence
iv. Have sufficient knowledge of English, Welsh or Scottish Gaelic;
v. Have sufficient knowledge about life in the UK; and
vi. Meet the residential requirements
Residential requirements (Schedule 1, Para 1 & Para 3of BNA)
i. Non Spouse: (Para 1 (2))
5 years lawfully in the UK (no breach of IR)
In 5-year period not outside of UK for more than 450 days.
In the last 12 months of 5 year period, he or she was not outside the UK for more than 90 days
(not subject to any time limit under the IR)
, Applicant was in UK beginning of 5 year period ending when application received (e.g. application
received by UKVI on 10 August 2020, applicant will need to have been in the UK on the 10 August
2015) Ÿ Key differences:
² Has had ILR for last 12 months (para 1(2)(c))
² Intends the UK to be their principal home (para 1(1)(d)(i)) ii. Spouse (Para
3)
3 years lawfully in the UK (no breach of IR)
In 3 year period not outside of UK for more than 270 days
Last 12 months not outside UK for 90days
Applicant was in UK beginning of 3 year period ending when application received.
Key differences:
² Date of application has ILR (para 3(c)
à In conclude, the s.6(1) route requires a longer period of residence (5 years). Further
it stipulates that the applicant must intend the UK to be their principal home and that the
applicant must have ILR for at least 12 months at the date of application. These
requirements are not applicable to s.6(2), under this route the applicant simply needs to
have ILR at the date of application.
Registration
People under 18 born in the UK may be registered in the following circumstances:
n Born after 1.1.83, but is not British as neither parent was British or settled at the time of the birth, if
while the child remains a minor the parent becomes British or settled, then an application to
register the child as British can be made (s.1(3)
BNA); n Born after 1.1.83, but is not British because neither parent was
British or settled at the time of the birth, if the child is aged at least 10 years and at
the date of the application has lived in the UK for the first 10 years of his/her life,
and during those 10 years has not been out of the UK for more than 90 days in
any one of those years, then an application to register the child as British can be
made
(s.1(4) BNA) n in the case of any minor the SSHD can as a matter of
discretion register the child as British (s.1(7) BNA)
s.40 BNA à gives the SSHD power to deprive a person of BC or British nationality on the
following grounds:
n nationality obtained by registration or naturalisation was in fact obtained by fraud, false
representation or concealment of a material fact
n conducive to the public good.
there is a right of appeal against the deprivation of nationality to the First-tier Tribunal or in national
security cases to the Special Immigration Appeals Commission (‘SIAC’)(s.40A BNA)
Visitors to the UK (Appendix V)
General requirements (Parts V1 & V2)
A visa national (Appendix V of Immigration Rules) must obtain entry clearance before they
arrive in the UK (Para V 1.2)
submit an online application of Entry Clearance at British Embassy/High Commission, with a fee,
supporting evidence, a valid travel document and biometric data.
Non-visa national can apply at port and before entry
A non-visa national may apply for a visit visa, but is not required to unless they are visiting the
UK to marry or to stay in excess of 6 months (Para V 1.3)
Where immigration control takes place?
1. Overseas before entry to the UK
Visa nationals always require entry clearance, non-visa nationals will not require entry
clearance if intending to come to the UK for less than 6 months. Procedure for entry
clearance:
i. Applicant submits (usually online to a Visa Application Centre): Visa Application Form
(VAF 1-10), Fee (local currency) and NHS Surcharge if relevant, supporting documents (e.g.
certificates, proof of earnings, proof of accommodation)
ii. Biometrics (e.g. fingerprint, photograph)
, iii. Entry clearance officer considers application and may interview applicant. NB: many
of the busiest entry clearance posts now employ an agent or commercial agent to accept and
process applications before forwarding them to the entry clearance post for decision.
2. At ports on entry to the UK
Apply for Leave to enter on entry may be granted on entry to non-visa nationals in certain
categories of 6 months or less.
l Application made to immigration officers
l NB: for non-visa nationals they still have the option of applying for entry clearance in
advance at the British embassy. But if they apply at the port they will need to satisfy the
immigration officer that they fulfil the rules relating to their visa (e.g. visitor)
Leave to enter conditions:
Stay should not exceed period of 6 months
Prohibition on employment
No recourse to public funds
No restriction on frequency of visits but there should be intervals between them – should not
spend more than 6 out of 12 months in the UK.
Suitability requirements (Part V3)
Para V 3.12: an applicant will be refused if they fails without reasonable excuse to comply with
a requirement to provide information.
(Exam tips: Consider if there is any immigration history? Criminal conviction? )
Eligibility requirement (Part V4)
Applicant that have additional eligibility requirements
Para V4.1 Child at the date of application
Para v 4.11-4.13 Coming to receive private medical treatment
Para V 4.14-4.16 Coming to the UK as organ donor
Para V4.17- 4.20 coming to the UK under ADS agreement
Para V 4.21 academic
Para V 4.22 Standard visitor:
Para V 4.2-4.10 Must have:
Genuine intention to visit (Para V 4.2) thus need to consider their ties to home country, Funds,
maintenance and accommodation
Must not intend to:
Work in the UK (or receive payment from a UK source) (Para V 4.5 & 4.6)
Study in the UK (Para V 4.8) except a maximum of 30 days incidental study
Receive medical treatment other than private medical treatment or to donate an organ (Para V
4.9)
Marry or form a civil partnership (Para V 4.10) unless they have a visit visa endorsed for
marriage or civil partnership
Extension of stay as a visitor (Part V 8) not important, as there is general maximum of 6
months, rare to grant extension that beyond 6 months.
a standard visitor for private medical treatment may be granted a further extension of stay as a
visitor for 6 months. (Para V 8.8)
Para V9 sets out in what circumstances leave to enter to remain as a visitor may be curtailed
or cancelled. (e.g. false representations or false documents were provided)
Entry Clearance and Tier 4 (General) Students
General Grounds for Refusal of Entry Clearance: p.28
Immigration Health Surcharge
The Immigration Health Surcharge (IHS) is a fee levied on the majority of UK visa applications.
The IHS is on top of other Home Office immigration fees and is designed to land in a different
government pocket. Also known as the NHS surcharge, it essentially
adds £624 per year per person to the cost of a UK visa,
or £470 a year for children, students and Youth Mobility visas.
Tier 4 (General) * [p.82] Applicant for post-16 education.
Must be Genuine Student [p.86]
Para 245ZV sets out the requirements for entry clearance: 40 points
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