British Citizenship vs ILR for married partners

[Champ Raccoon]

Dear all

I am a BC, and I have been married and living with my wife in the UK since April 2013. Just doing some forward planning and understood that after 3 years a partner of a BC can apply for Citizenship if certain condition are met. I am only questioning the condition relating to ILR. To obtain ILR one must live in the UK for 5 years, thus effectively trumping the 3 year rule for citizenship application for partners of a BC.
My question is does a partner of a BC have to have ILR in the UK before applying for citizenship, if so, does that mean that effectively they need to have been resident in the UK for at least 5 years in the UK, obtain ILR and then apply?
If that is the case, does that basically mean that the 3 year rule is non existent?
Many thanks in advance for your assistance on this matter,

Best
Champ

[Casa]

Dear all

I am a BC, and I have been married and living with my wife in the UK since April 2013. Just doing some forward planning and understood that after 3 years a partner of a BC can apply for Citizenship if certain condition are met. I am only questioning the condition relating to ILR. To obtain ILR one must live in the UK for 5 years, thus effectively trumping the 3 year rule for citizenship application for partners of a BC.
My question is does a partner of a BC have to have ILR in the UK before applying for citizenship, if so, does that mean that effectively they need to have been resident in the UK for at least 5 years in the UK, obtain ILR and then apply?
If that is the case, does that basically mean that the 3 year rule is non existent?
Many thanks in advance for your assistance on this matter,

Best
Champ

You've spotted the Home Office's 'catch 22' - "thus effectively trumping the 3 year rule" ILR is mandatory before applying for BC, which means a 5 year route. However, as you are a British citizen your wife will be able to apply immediately after being granted ILR, assuming all the standard requirements are met...whatever they may prove to be in 2018!

[Champ Raccoon]

So close but yet so far! I don't know whether I should laugh or cry.
That is a shame, however you are right, the rules may be very very different by 2018!

[CR001]

To obtain ILR one must live in the UK for 5 years, thus effectively trumping the 3 year rule for citizenship application for partners of a BC. Don't confuse immigration rules to nationality rules, they are very different. Spouse visas used to be for 2 years, then plus 1 year on ILR = the 3 year for citizenship requirement. The two year visas ceased in July 2012.
My question is does a partner of a BC have to have ILR in the UK before applying for citizenship,Yes, it will be refused if ILR is not held if so, does that mean that effectively they need to have been resident in the UK for at least 5 years in the UK, obtain ILR and then apply? Yes
If that is the case, does that basically mean that the 3 year rule is non existent? No, the concession your spouse has is that she can apply for citizenship immediately once granted ILR and will not have to wait the standard 12 months on ILR first. She will apply as spouse of BC which is based on 3 years residence.
Many thanks in advance for your assistance on this matter,

Best
Champ

Edit : CR001 Trumped by CASA (this time )

[Casa]

To obtain ILR one must live in the UK for 5 years, thus effectively trumping the 3 year rule for citizenship application for partners of a BC. Don't confuse immigration rules to nationality rules, they are very different. Spouse visas used to be for 2 years, then plus 1 year on ILR = the 3 year for citizenship requirement. The two year visas ceased in July 2012.
My question is does a partner of a BC have to have ILR in the UK before applying for citizenship,Yes, it will be refused if ILR is not held if so, does that mean that effectively they need to have been resident in the UK for at least 5 years in the UK, obtain ILR and then apply? Yes
If that is the case, does that basically mean that the 3 year rule is non existent? No, the concession your spouse has is that she can apply for citizenship immediately once granted ILR and will not have to wait the standard 12 months on ILR first. She will apply as spouse of BC which is based on 3 years residence.
Many thanks in advance for your assistance on this matter,

Best
Champ

Edit : CR001 Trumped by CASA (this time )

Yes, but yours was far prettier CR001...with all that red text!

[CR001]

Yes, but yours was far prettier CR001...with all that red text!

I aim to please and make things pretty Would have trumped you had I not pop outside briefly brrrrrrr

[TheMouseReturns]

I wouldn't be surprised if the government updates the rules in the next 18 months or so - before the first batch of people under the post-July 2012 rules become eligible. If they do, the potential is the spouse of BC rules are aligned with everyone else, and a requirement of 12 months ILR is introduced.

Of course that is just conjecture and may not become the case, however the way this government has gone with visa requirements..

[secret.simon]

the potential is the spouse of BC rules are aligned with everyone else, and a requirement of 12 months ILR is introduced.

Unlikely. That would require primary legislation (Act of Parliament) to amend the British Nationality Act 1981 and there would be substantial scrutiny in both Houses of Parliament and coverage in the press.

Thus far, the government has stuck to making significant changes via secondary/delegated legislation.

Essentially, the Immigration Act 1971 (under which all entry clearance and leave to remain, including ILR, is given) and the British Nationality Act 1981 (under which one acquires citizenship, either by registration or naturalisation) give the SSHD a lot of discretion to define matters by rules and regulations. While they have to be scrutinized by Parliament, the Commons do not have an effective mechanism to scrutinise (and the government has a built-in majority anyway) and the Lords (who have two committees reading through SIs and a procedure to reject them) are too polite or too diffident to actually reject them. Witness the furore about the tax credits vote in the Lords (which was also brought in through secondary legislation). And that was only the sixth rejection since 1945 (i.e. in 70 years)!!!

The OP's point underscores my observation. The government has avoided amending the BNA, which gives spouses to British citizens citizenship after three years by increasing the requirement for ILR from two years to five years through secondary legislation. That is why the discrepancy between one statute and the rules made under another.

[TheMouseReturns]

the potential is the spouse of BC rules are aligned with everyone else, and a requirement of 12 months ILR is introduced.

Unlikely. That would require primary legislation (Act of Parliament) to amend the British Nationality Act 1981 and there would be substantial scrutiny in both Houses of Parliament and coverage in the press.

Thus far, the government has stuck to making significant changes via secondary/delegated legislation.

It would be a relatively minor change to Schedule 1 that is required, similar to how lines have been inserted in the past. Such previous examples includes the addition of knowledge of life in the UK, or allowing for civil partners. However in this case it could go as far as removing S6(2).

It is not inconceivable that this could happen, and given the post-July 2012 spouse rules have so far not been significantly challenged the argument to remove the slightly differing requirements for a spouse of a BC would (unfortunately) be relatively straightforward. Especially as it now takes the same length of time for a spouse to reach ILR stage.

[secret.simon]

It is not inconceivable that this could happen

Not inconceivable, merely unlikely.

Even were it to happen, primary legislation typically takes a year to get through the two Houses of Parliament. So, we will have ample notice.

Also, as I noted in another post, according to an academic study of naturalisation requirements across EEA countries, the UK has some of the lowest requirements and one of the fastest processing times in the EEA, though the government is doing its best to increase the requirements to the average if not the higher end of the scale.