British Citizenship for holder of Right of Abode

[johnnic]

My wife has Right of Abode for the UK (Commonwealth citizen previously married to a UK citizen). I have ILR and I understand the rules that apply to me in regards to applying for citizenship.

Is the process for gaining British citizenship the same for her as it is for me? Specifically, does she have to wait for five years after entering the UK before she can apply and does she have to meet the usual 450 day maximum absences rule?

Appreciate any advice.

[secret.simon]

My wife has Right of Abode for the UK (Commonwealth citizen previously married to a UK citizen).

Are you absolutely certain that your wife has got Right of Abode? Is it evidenced by a Certificate of Entitlement-Right of Abode in her current passport?

She would only have acquired the Right of Abode in this way if she was married to the CUKC having Right of Abode himself before 1st January 1983 (there was no "British citizens" then).

The relevant sections of the Immigration Act 1971 (as enacted) are;

2 Statement of right of abode, and related amendments as to citizenship by registration
(1) A person is under this Act to have the right of abode in the United Kingdom if—
(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.
(2) A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either—
(a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned in subsection (1)(d); or

(b)has at any time been the wife—
(i) of a person then being such a citizen of the United Kingdom and Colonies or Commonwealth citizen; or
(ii) of a British subject who but for his death would on the date of commencement of the British Nationality Act 1948 have been such a citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a) or (b);.
but in subsection (1)(a) and (b) above references to registration as a citizen of the United Kingdom and Colonies shall not, in the case of a woman, include registration after the passing of this Act under or by virtue of section 6(2) (wives) of the British Nationality Act 1948 unless she is so registered by virtue of her marriage to a citizen of the United Kingdom and Colonies before the passing of this Act.

Also see the same section as now amended.

Commonwealth citizens with Right of Abode have all the same rights as a full British citizen. Indeed, Section 2(2) of the Section as amended suggests that she would even be considered a British citizen for the purpose of your naturalisation (i.e. you can naturalise immediately after getting ILR with no need to wait for a full year).

However, as it is very rare for people to have this kind of status, it is best to double-check that your wife indeed has Right of Abode and that she has had an unbroken, continuous Commonwealth citizenship since 1983.

Which country/ies is she a citizen of?

[johnnic]

Are you absolutely certain that your wife has got Right of Abode? Is it evidenced by a Certificate of Entitlement-Right of Abode in her current passport?

Yes, she does have Right of Abode. My wife is an Australian (as am I) and she married a UK citizen (living in Australia) in 1981. She received the certificate of entitlement to Right of Abode in 2011 and we travelled to the UK the following year. I travelled on a spouse visa and in 2014 she sponsored me for my ILR application, which was granted.

We understand that she effectively has the same rights as a British citizen but she is still interested in obtaining citizenship, primarily to show her allegiance to the UK but also to avoid small inconveniences such as the need to reapply for RoA every time she changes her passport. Also, as we understand it, without UK citizenship she remains subject to Schengen rules. If this is not so, we would be interested to learn otherwise.

I was also interested in your suggestion that I may be considered under the 3 year rule for naturalisation rather than the five year rule. Is that the case?

As for my wife, given the circumstances as I have set out, are you able to advise us of the requirements that she has to meet in order to obtain citizenship?

Thank you.

[vinny]

She should meet the same naturalisation requirements as everyone else. Three years residence will be applicable, only if she is the spouse or civil partner of a British citizen.

[johnnic]

She should meet the same naturalisation requirements as everyone else. Three years residence will be applicable, only if she is the spouse or civil partner of a British citizen.

This is what we expected to be the case but it does seem slightly inconsistent with

Indeed, Section 2(2) of the Section as amended suggests that she would even be considered a British citizen for the purpose of your naturalisation (i.e. you can naturalise immediately after getting ILR with no need to wait for a full year).

It would appear a little odd if my wife had to wait five years but I could do it after three?

Also, with RoA she is not subject to immigration control, so does the maximum 450 days absences apply? It is not monitored, ie the passport is not stamped on re-entry to the UK.

We're finding it difficult to get answers to these sorts of questions through other channels so we appreciate the help of the forum.

[vinny]

I think section 2(2) only relates to "this Act", that is, the Immigration Act and not the Nationality Act. Else, it would be unnecessary for her to Naturalise.

[secret.simon]

We're finding it difficult to get answers to these sorts of questions through other channels so we appreciate the help of the forum.

It is quite rare to come across somebody in this very specific situation. It certainly is the first that I have come across where a person with Right of Abode wants to naturalise as a British citizen.

It is worth reading through the Home Office's instructions on nationality and their guidance (which seems to be identically worded, but I could be wrong), though I could not find any answer to your question there either.

I would suggest emailing furthernationalityenquiries@homeoffice.gsi.gov.uk with your query about your wife's acquisition of British nationality and keeping us posted of developments on this thread.

EDIT: Vinny is right with regards to the difference between the Immigration Act and the BNA. I made a very silly and elementary mistake.

[vinny]

With the lack of UK entry/exit stamps, it may be difficult to show that she satisfies the residential requirements. Similar to EEA nationals and their partners naturalising, she may submit alternate means of proof that she was in the UK and not exceeding the permitted absences, during the required period.

[johnnic]

I would suggest emailing furthernationalityenquiries@homeoffice.gsi.gov.uk with your query about your wife's acquisition of British nationality and keeping us posted of developments on this thread.

Thanks for all the advice. If we find an answer, we will post the results. Incidentally, that email address doesn't work - invalid domain.