Written by Mahfuz Ahmed.
A person can apply for naturalisation and become a British Citizen if they satisfy all of the requirements. Some of those requirements include suitability requirements, eligibility requirements and passing the Life in the UK test.
Schedule 1, paragraph 1(2)(a) of the British Nationality Act 1981 states that any applicant must be in the United Kingdom for a period of 5 years prior to the date of the applicant (the five year rule).
The aim of the five-year rule is to ensure that an applicant for citizenship has a clear, strong connection with the UK evidenced by presence in the UK.
This means that an applicant can only be absent for a certain amount of days prior to the application to be eligible.
R (on the application of Vanriel and another) v Secretary of State for the Home Department
In this case the Claimant was born in Jamaica in 1956 and he came to the United Kingdom in 1962 with his mother.
In the 1990’s the Claimant would regularly visit his father and son in Jamaica using his Jamaican passport, which had an Indefinite Leave to Remain stamp.
In 2004, the Claimant attended his father’s funeral in Jamaica. When he sought to return in 2007 he was denied entry as a returning resident.
In 2018, the Claimant was granted a visa as a returning reside under the Windrush scheme. He applied for ILR which was granted. However, when applying for naturalisation he was refused in 2021 as he had not satisfied the five-year rule, that is to say he was not in the UK for 5 years prior to the application. The Secretary of State stated that they had no discretion to waive this requirement.
The Claimant challenged the refusal of his citizenship application by way of Judicial Review.
Judicial Review proceedings
The Claimant argued that they were victims of the type of injustice which had given rise to the Windrush scheme. They were wrongfully prevented to enter the United Kingdom despite having Indefinite Leave to Remain and therefore the 5 year rule could not be satisfied, through no fault of their own.
The Claimant argued that the five-year rule could not be justified as the criteria did not allow discretion, and therefore incompatible with the European Convention of Human Rights. There was indirect discrimination as the present rule did not permit the treatment of different situations to be assessed.
The Court agreed with the Claimant and held making citizenship decisions in the Claimants’ cases by application of the five-year rule with no discretion or flexibility was incompatible with their rights under art 14 in conjunction with art 8.
Our comments
This important decision is much welcome as discretion should be permitted when considering the 5 year rules. Applicant’s may have significant reasons as to why they cannot satisfy this requirement and now the Secretary of State would be obliged to consider those reasons.
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