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Naval Families Federation immigration adviser Pete Hawley has been invited to contribute to a consultation which could result in visa fees being waived for non-UK military personnel at the end of their service.

 

The public consultation, launched at the end of May by Defence Secretary Ben Wallace and Home Secretary Priti Patel, would change policy so that non-UK Service personnel could be offered indefinite leave to remain in the UK for free after serving at least 12 years in the Armed Forces, subject to eligibility criteria.

 

The proposal from the MOD and Home Office could save each applicant £2,389 in the costs of applications.

 

The 12-year yardstick reflects the length of time all Service personnel initially sign up to serve, known as the initial engagement period.

 

There are currently more than 10,000 non-UK citizens serving in the UK Armed Forces from countries around the world including Australia, Canada, Fiji, Ghana, India, Jamaica, Nepal, New Zealand, Nigeria, St Lucia, St Vincent and the Grenadines and South Africa, many of whom may consider applying for indefinite leave to remain in the UK when their service ends.

 

Defence Secretary Ben Wallace said: “We owe those who showed us loyal service our loyalty in return.

 

“It is right that we recognise their contribution by not only smoothing the pathway to residency and citizenship, but also by lifting the financial cost of doing so after 12 years of service.”

 

Home Secretary Priti Patel said: “I am immensely proud that brave Servicemen and women from around the world want to continue to call the UK their home after their service.

 

“It is only right that those who continue to do extraordinary work on behalf of our country are recognised and rewarded, and I am determined to support them settle in our wonderful communities right across the UK.”

 

Leo Docherty, Minister for Defence People and Veterans, said: “That so many non-UK citizens choose to bring their dedication, expertise and bravery to the UK Armed Forces is not something we take for granted, and I am pleased to support this policy proposal.

 

“We look forward to hearing the public’s view and working together to move these plans forward, strengthening our support to those who want to build a life in the country they bravely defended during their service.”

 

While Pete has been invited to provide evidence in his role as an OISC Level 1 Immigration Adviser, members of the public can also contribute to the consultation on the proposed policy changes.

 

The consultation will run until 7 July, and feedback will be used to further inform and shape these changes. Subject to the outcome of the consultation, the proposed policy change is expected to come into effect for Financial Year 2021/22.

 

Posted on: 3rd June, 2021

 

A new section has been added to the Naval Families Federation website offering advice and guidance through the complex rules and regulations on UK visas and citizenship.

 

The new pages complement the personal advice offered by recently-qualified NFF immigration adviser Peter Hawley, who handles cases and enquiries from serving military personnel and their families, as well as veterans and their families who are still under Armed Forces immigration rules.

 

Information contained within the UK Visas and Citizenship pages will not only assist serving sailors and Marines and their families, but will also be a boon to the Chain of Command and supporting agencies.

 

UK immigration rules are an area requiring a degree of specialist knowledge – getting it wrong could lead to a costly error, or a situation which has major implications for future immigration applications.

 

As such, the information provided – compiled with the help of military immigration law specialist Joanne Sullivan of GBS UK Immigration – offers general guidance.

 

The pages also signpost to other websites which cover or specialise in visa and citizenship matters such as Gov.uk – the official UK government website – and the Office of the Immigration Services Commissioner (OISC), which regulates immigration advisers.

 

Pete (Peter.Hawley@nff.org.uk) is qualified to provide immigration advice for all applications within the Immigration Rules for the following categories at Level 1:

  • Applications for entry clearance, leave to enter and leave to remain for visitors and family members;
  • Nationality and Citizenship;
  • Some aspects of EU and EEA immigration law.

 

He will not advise on enquiries relating to student or work visas, which are outside the scope of the NFF, and requests for advice on more complicated or specialist immigration issues will be referred on to agencies qualified to Level 2, in most cases either Joanne Sullivan or Katherine Houlston of the Army Families Federation (AFF).

 

For further details of how the NFF can help you in more complicated immigration issues see the OISC statement on our website at nff.org.uk/oisc-details/

 

NFF Chief Executive Officer Anna Wright said:

 

“I am thrilled that the NFF is able to expand the suite of advice and guidance that we can offer into the complicated area of immigration.

“My colleagues field queries on immigration issues on a regular basis, and this is yet more proof of our determination to provide a comprehensive support service for all of our Royal Navy and Royal Marines families.”

 

The new web pages, designed and created by NFF Marketing and Communications Manager Cinmi Walker, went live today (8th September, 2020) and will be updated regularly as rules and regulations change.

 

The NFF website also offers advice on accommodation, education, employment, finance, leaving the Service, overseas assignments, relationships and wellbeing.

 

Posted on: 8th September, 2020

British Citizenship – Children Born in the UK (and Overseas)

Any child born to a serving member of HM Forces on or after 13th January 2010 is automatically a British citizen by virtue of Section 1(1) of the British Nationality Act 1981 (including Reserves subject to Service law by virtue of s.367(2)(a)-(c) of the 2006 Armed Forces act).  If the child’s mother is a civilian and a foreign national, it does not matter whether the parents are married.

 

The requirement to be married to the mother only applies to those who were born before 1st July 2006. The requirement that the child should be born ‘legitimate’ has not been relevant since 01st July 2006.  The requirement to be married to the mother only applies to those who were born before 01st July 2006; in such circumstances, the child can be registered as a British citizen.

A person born in the UK on or after 1 July 2006 is a British citizen if -

Under Section 1(1) of the British Nationality Act 1981, a person born in the UK on or after 1 July 2006 is a British citizen if, at the time of their birth, one or more of the following applies:

  • either parent is a British citizen
  • either parent is settled in the UK
  • either parent is a member of the armed forces and the person was born on or after 13 January 2010

 

Children born in the United Kingdom to parents who are not British and did not have Indefinite Leave to Remain at the time of their birth and one or both of their parents subsequently enlist into HM Forces after their birth are either entitled or eligible to be registered as British citizens.

  • Children born after 13th January 2010 are entitled 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.
  • Children born before 13th January 2010 are eligible to be registered under Section 1(3). However, they will now also be entitled to register under Section 1 (4).

 

Applications for children to become British citizens need to be made using either Form MN1 or Form T. This will depend of the child’s personal circumstances, or their parents and will also depend on what Section of the British Nationality Act 1981 they are relying on.  Children are not naturalised, they are registered as British Citizens.

 

As a parent, you must ensure that your child is registered under the appropriate provision. A child with an entitlement should be registered under that entitlement and not by use of the discretion under Section 3(1), unless necessary.

 

Failure to register a child under the appropriate Section of the 1981 British Nationality Act could adversely affect future generations. This is because in some cases registration under section 3(1) would give British citizenship by descent, whereas registration under an entitlement provision would give British citizenship otherwise than by descent.

 

The British Nationality Act 1981 contains several provisions which give children in certain circumstances an eligibility or entitlement to registration as British citizens. A few of them are:

 

  • Section 1(3) and Section 1 (3A) applies to those children who were born in the United Kingdom and their parents have either becomes a British citizen, or settled in the UK or have enlisted into HM Armed Forces
  • Section 3(1) application applies to children who may be eligible and registered at the Home Secretary’s Discretion if they do not meet all the requirements
  • Section 1(4) applies to UK born children with residence in the UK from birth to age 10
  • Section 4D applies to children who were born outside the UK to a parent serving in the armed forces.
Registration Under Section 1 (3): = Form MN1
Requirements for Registration under Section 1(3)

Children are entitled to registration under section 1(3) of the British Nationality Act 1981 if:

  • they were born in the UK;
  • they were not British citizens at birth because at the time neither parent was a British citizen or settled;
  • while they are minors either of the parents has since become a British citizen or settled in the UK, or join HM Armed Forces
  • they are under the age of 18 on the date the application is received
  • they are of good character if over the age of 10

 

Evidence required under Section 1(3)

Applications under section 1(3) must be supported by the following evidence:

  • Child’s full birth certificate showing birth in the UK, parents’ details and registration in the 12 month period following birth
  • Evidence of parent’s British citizenship since the applicant’s birth, such as:
    • a British passport
    • a naturalisation certificate
    • a registration certificate
  • Evidence of parent’s settled status since the applicant’s birth, such as:
    • an indefinite leave to remain (ILR) stamp in a passport
    • a Home Office letter
    • a no time limit stamp
    • a biometric residence permit (BRP) confirming ILR
  • A marriage certificate, if:
    • the parent on whom the claim is based became a British citizen or settled in the UK after the child was born
    • the child was born prior to 1 July 2006 to a father who is a British citizen.

 

Registration under section 1(3) gives British citizenship otherwise than by descent.  This means that your child will pass on their British nationality to future generations.

Registration Under Section 1 (3A): = Form MN1

Requirements for registration under section 1(3A). Children are entitled to registration under section 1(3A) of the British Nationality Act 1981 if:

  • they were born in the UK on or after 13 January 2010
  • they were not a British citizen at birth, as at the time neither parent was:
    • a British citizen
    • settled in the UK
    • serving in the UK armed forces

Registration under section 1(3A) gives British citizenship otherwise than by descent.  This means that your child will pass on their British nationality to future generations.

 

Evidence required under section 1(3A) Applications under section 1(3A) must be supported by the following evidence:

  • Child’s full birth certificate showing birth in the UK on or after 13 January 2010
  • Evidence of parent’s service in the UK Armed Forces
  • A Home Office stamp showing the holder is entitled to exemption under section 8(4) of the Immigration Act 1971
  • letter from the Ministry of Defence confirming service in the armed forces (including details of the postings at the time of birth and dates of service)
Registration Under Section 1 (4) = Form T
Requirements for registration under Section 1(4): Children are entitled to registration if:

Section 1(4) of the British Nationality Act 1981 allows a child to be registered as a British citizen based on the child being born in the United Kingdom and having lived in the UK for the first 10 years of their life.   Children are entitled to registration under section 1(4) of the British Nationality Act 1981 if:

  • It will be deemed a child is entitled to registration under Section 1 (4) if:
    • The child was born in the UK
    • The child was not a British citizen at birth as at the time of birth neither parent was a British citizen nor settled in the UK
    • The child is aged 10 years or over on the date of the application
    • The child has lived in the United Kingdom for the first 10 years of their life
    • The child has not been outside of the United Kingdom for more than 90 days in each of the first 10 years of their life
    • The child is of good character

 

Evidence required under section 1(4)

Applications under section 1(4) must be supported by the following evidence:

  • applicant’s full birth certificate to confirm that they were born in the UK and that they are 10 years or over on the date of application
  • evidence of residence to cover the first 10 years of the applicant’s life

 

The evidence of residence will differ for the different periods of a child’s life and therefore the following documents must be provided:

  • current passport
  • any expired passports
  • medical records
  • vaccination records
  • doctors’ letters o personal child health record (red book)
  • letters from child’s school confirming attendance

 

Registration under section 1(4) gives British citizenship otherwise than by descentThis means that your child will pass on their British nationality to future generations.

Registration at the Home Secretary’s Discretion – Section 3(1) application = Form MN1

A child is also eligible to have an application for registration as a British citizen considered on a discretionary basis. It is not possible to cover all circumstances under which the Home Secretary might exercise discretion. However, consideration will be given to:

 

  • The children’s connections with the United Kingdom – the Home Office would expect the children to be free of any restrictions on their stay in the United Kingdom.
  • Where the child’s future is likely to lie
  • The parents’ views
  • The parents’ nationality and immigration status – the Home Office usually expects both parents to be British citizens or one parent a British citizen and the other parent settled in the UK.
  • Whether the child is of good character.
  • The length of time the child has lived in the UK – the Home Office expects at least 2 years residence (particularly if the child is over the age of 13)
  • Any compelling circumstances.
Section 4 (D) of the British Nationality Act 1981: Citizenship for children born outside the UK whilst a parent is posted on an overseas assignment after 13th January 2010 – Form MN1

Section 4D of the British Nationality Act 1981 came in to force on 13th January 2010. This provision gave a new registration route to those born to a parent in serving in HM Armed Forces. However, only those born on or after 13th January 2010 are eligible to have an entitlement apply for citizenship under section 4D.

 

All children born to Foreign and Commonwealth serving members of HM Forces outside the UK whilst their parent was or is on an overseas posting are eligible to apply to be registered as British Citizens.

 

Requirements for registration under Section 4(D): Children are entitled to registration under Section 4 (D) of the British Nationality Act 1981 if:

  • A child was born overseas after 13th January 2010
  • Evidence confirming that the parent who is serving in HM Forces was posted/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 serving member.

 

Children Born Overseas Before 13th January 2010 to Foreign and Commonwealth Members of HM Armed Forces on an Overseas Posting: – Form MN1

For those who were born before 13th January 2020, the Secretary of State has agreed to routinely exercise her discretion and register a child under section 3(1) of the British Nationality Act 1981 where:

  • The child was born outside the United Kingdom and the qualifying territories before 13 January 2010; and
  • At the time of the birth, their father or mother was:
    • a foreign and Commonwealth member of the UK Armed Forces; and
    • serving outside the United Kingdom and the qualifying territories
    • consent of both parent’s; and
    • If the person is aged 10 or over on the date of application, the Secretary of State is satisfied that they are of good character

 

Important Note:  the child’s mother does not have to accompany the parent who is serving in HM Forces on the overseas assignment for the child to be eligible to register as a British citizen.

However, if the child was born overseas when the HM Forces parent was serving in the UK, then the child is not eligible to be registered as a British citizen.

 

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 20150408 DIN ‘Family Migration Rules for UK Armed Forces family members who are Non-British’.

British Citizenship – Acquisition by Naturalisation as an Adult

Becoming a British citizen (Naturalisation) is a significant life event. As a serving member of the Armed Forces, naturalisation is not needed for service reasons therefore it is a personal choice for the service person to make. All costs associated with naturalisation are a personal responsibility (as stated in BR 3 Chapter 19 para 1914).

 

The requirements for naturalisation as a British citizen differ depending on whether or not you are applying on the basis of marriage or civil partnership with a British citizen. There are two routes for naturalisation, under s6(1) BNA 1981) or, where the applicant is the spouse of a British citizen, s6(2). In addition to this, if you are applying as a Serving Member of the RN or RM and from a Commonwealth Country, see the section on  “Crown Service”.

Naturalisation if Married to or the Civil Partner of a British Citizen (Section 6(2) of the British Nationality Act 1981)

A person who is married to or the civil partner of a British citizen is not automatically entitled to become a British citizen by naturalisation. A decision can only be made to grant citizenship if the individual is living in the UK and can satisfy the legal and residence requirements outlined in Booklet and Guide AN and Application to Naturalise as a British Citizen. The details are outlined below –

 

The Legal requirements you should meet before you apply are that:
  • Are aged 18 or over when you apply
  • Are married to or the civil partner of a British citizen on the date of application
  • Are of sound mind, so that you understand the step you are taking (but see the section on those who are not of Sound mind)
  • Can communicate in English (or Welsh or Scottish Gaelic) to an acceptable level
  • Have sufficient knowledge about life in the UK
    • You can demonstrate your knowledge of language and life in the UK by:
    • Are of good character
      • You should read the guidance in the booklet carefully. More detailed information can be found here
    • If you have a non-custodial criminal conviction, then you will be unable to apply for citizenship until three years after your conviction. Non-custodial convictions include court-imposed fines for drink-driving and speeding, as well as fines for assault, battery etc. Fines imposed through a summary hearing or courts marshal also result in a non-custodial criminal conviction
    • If you have a custodial sentence of up to 12 months, you won’t be able to apply until 10 years after your conviction. Custodial convictions include time spend at MCTC Colchester
    • For information on which military offences are considered to be criminal click here
    • Breach of Immigration Law
      • To meet the residence requirements, you should not have been in breach of immigration law during the residential qualifying period. You should have been here legally. This means you must have had the necessary permission under the immigration laws and complied with any requirements to be in the UK. You may be refused if you have been in breach of immigration laws during the residential qualifying period
      • Any immigration offences will also be considered as part of the good character requirement. This includes immigration breaches in the 10 year period before you apply for naturalisation – see “immigration related issues” section in the good character guidance for further details
    • Have lived in the UK for a minimum of 3 years before you apply and meet the following residence requirements:

 

The Residence Requirements
  • You must have been physically present in England, Wales, Scotland, Northern Ireland, the Isle of Man or the Channel Islands on the day 3 years before the application is received by the Home Office.
  • For example, if your application is received on 05/05/2021, you should have been physically present in the UK on 06/05/2018.
  • Most applications that fail do so because applicants have applied even though they cannot satisfy the residence requirement to be present in the UK at the beginning of the residential qualifying period.
  • You must not have had more than 270 days outside the UK in the 3-year period before making the application (but see the table in the section on Absences from the UK in this guidance).
  • You must not have had more than 90 days outside the UK in the 12-month period before making the application, (but see the table in the section on Absences from the UK in this guidance).
  • You must be free from immigration time restrictions on the date of application.
    • Usually there is a stamp or sticker in your passport, or you have a biometric residence permit, saying that you have indefinite leave to enter or remain or no time limit on your stay. But you may have a letter from the Home Office saying that you are free from immigration conditions. (but see the table in the section on Immigration Time Restrictions in this guidance).
  • Breach of Immigration Law
    • To meet the residence requirements, you should not have been in breach of immigration laws during the 3-year residential qualifying period. You should have been here legally. This means you must have had the necessary permission under the immigration laws and complied with any requirements to be in the UK. You may be refused if you have been in breach of immigration laws during the residential qualifying period
    • Any immigration offences will also be considered as part of the good character requirement. This includes immigration breaches in the 10 year period before you apply for naturalisation – see “immigration related issues” section in the good character guidance for further details
Naturalisation If you are NOT married to or the civil partner of a British citizen (Section 6(1) of the British Nationality Act 1981)

Naturalisation if not Married to or the Civil Partner of a British Citizen. A person who is not married to or the civil partner of a British citizen is not automatically entitled to become a British citizen by naturalisation. A decision can only be made to grant citizenship if the individual is living in the UK and can satisfy the legal and residence requirements outlined in Booklet and Guide AN and Application to Naturalise as a British Citizen.

 

The Legal requirements you should meet before you apply are that
  • Are aged 18 or over when you apply
  • Intend to continue to live in the UK, or to continue in Crown service, the service of an international organisation of which the UK is a member, or the service of a company or association established in the UK
  • Are of sound mind, so that you understand the step you are taking (but see the section on those who are not of Sound mind)
  • Can communicate in English (or Welsh or Scottish Gaelic) to an acceptable level
  • Have sufficient knowledge about life in the UK
  • You can demonstrate your knowledge of language and life in the UK by:
  • Are of good character
    • You should read the guidance in the booklet carefully. More detailed information can be found here
  • If you have a non-custodial criminal conviction, then you will be unable to apply for citizenship until three years after your conviction. Non-custodial convictions include court-imposed fines for drink-driving and speeding, as well as fines for assault, battery etc. Fines imposed through a summary hearing or courts marshal also result in a non-custodial criminal conviction
  • If you have a custodial sentence of up to 12 months, you won’t be able to apply until 10 years after your conviction. Custodial convictions include time spend at MCTC Colchester
  • For information on which military offences are considered to be criminal click here
  • Breach of Immigration Law
    • To meet the residence requirements, you should not have been in breach of immigration law during the residential qualifying period. You should have been here legally. This means you must have had the necessary permission under the immigration laws and complied with any requirements to be in the UK. You may be refused if you have been in breach of immigration laws during the residential qualifying period
    • Any immigration offences will also be considered as part of the good character requirement. This includes immigration breaches in the 10 year period before you apply for naturalisation – see “immigration related issues” section in the good character guidance for further details
  • Have lived in the UK for a minimum of 5 years before you apply and meet the following residence requirements:

 

The Residence Requirements
  • You must have been physically present in England, Wales, Scotland, Northern Ireland, the Isle of Man or the Channel Islands on the day 5 years before the application is received by the Home Office.
  • For example, if your application is received on 05/01/2022 you should have been physically present in the UK on 06/01/2017.
  • Most applications that fail do so because applicants have applied even though they cannot satisfy the residence requirement to be present in the UK at the beginning of the residential qualifying period.
  • If you are a current or former member of the UK armed forces, you may not have to meet this requirement, if you were serving outside of the UK on the date 5 years before applying.
  • You must not have had more than 450 days outside the UK in the 5-year period before making the application (but see the table in the section on Absences from the UK in this guidance).
  • You must not have had more than 90 days outside the UK in the 12-month period before making the application, (but see the table in the section on Absences from the UK in this guidance).
  • You must be free from immigration time restrictions on the date of application and have been free from immigration time restrictions for the 12-month period before making the application
    • Usually there is a stamp or sticker in your passport, or you have a biometric residence permit, saying that you have indefinite leave to enter or remain or no time limit on your stay. But you may have a letter from the Home Office saying that you are free from immigration conditions. (but see the table in the section on Immigration Time Restrictions in this guidance).
  • Breach of Immigration Law
    • To meet the residence requirements, you should not have been in breach of immigration laws during the 5-year residential qualifying period. You should have been here legally. This means you must have had the necessary permission under the immigration laws and complied with any requirements to be in the UK. You may be refused if you have been in breach of immigration laws during the residential qualifying period
    • Any immigration offences will also be considered as part of the good character requirement. This includes immigration breaches in the 10 year period before you apply for naturalisation – see “immigration related issues” section in the good character guidance for further details
Applications for Commonwealth personnel (Crown Service)

For serving members of HM Armed Forces who are from a Commonwealth Country, the application process differs slightly to the routes for civilian applications. This is in recognition of the fact that the Residential Requirements are often not met due to the fact that the serving person may have been out of the UK on Operational or other duties for a significant amount of the 5 year qualifying period. It is only an alternative to the requirements about residence in the UK: you must still satisfy the requirements about character, language skills, knowledge of life in the UK and future intentions.

 

A Commonwealth serving member of the RN/RM;

  • CAN apply for citizenship whilst serving as long as they have lived in UK (or on overseas assignments for five years
  • CAN count any time spent legally in the UK prior to joining the RN/RM. This includes time spent on visit visas
  • DO have to have served for a minimum of 12 months prior to applying
  • DO have to include a unit letter to confirm date of enlistment and that time spent overseas was due to military Service.
  • DO NOT need Indefinite Leave to Remain (ILR) first
  • DO have to meet the Knowledge of Language and Life requirement (KoLL), regardless of how long they may have served for (refer to the main requirements section above)
  • DO NOT have to meet the requirement to have been in the UK on the first day of the five-year residential qualifying period
  • DO have to meet the good character requirement, including the requirement to have been lawfully resident for the previous 10 years. Please refer to the ‘main requirements’ section above
  • DO have to pay the fee
  • DO NOT have to send your passport in, a scan of your passport can be sent in along with the other supporting documents

 

NOTE – from 1 December 2013 it no longer matters if the serving person becomes a British citizen prior to the spouse applying for ILR. The serving person’s nationality will no longer affect a spouse visa application.

 

Application Process

It is now necessary to apply online for citizenship if you are in the UK.  You can access the form and guidance here.

  • You should write down all of your trips outside the UK – under ‘reason for trip’ you should write ‘Crown Service’ (unless you went outside the UK for non-Service reasons).
  • Where it says ‘do you meet these residence requirements’ you should select no
  • The next question states ‘please tell us which of the requirements you do not meet and the reason you do not meet them.’ You should write in the box: I do not meet the residence requirements because I have spent more than 450 days outside the UK due to Armed Forces Service. I have provided a letter which confirms this.
  • The from will then ask the about your Crown Service, you should select Yes and then complete the rest of the form.
  • You should provide a unit letter to confirm that your time out of the UK was due to Crown Service.

 

Biometric enrolment

As part of your application, all applicants are required to enrol their biometric details for the purpose of identity verification. This includes those who are “Exempt from Immigration Control” as a member of HM Armed Forces

Where you give your biometric information depends on how you’re making your visa or immigration application.

You’ll be told where to go after you’ve applied

Your application may be rejected as invalid if you do not enrol your biometrics when requested. For more information about enrolling biometrics and the current fee. For more information on Biometric Residence Permits please click here.

HM Forces: Criminality
HM Forces: Criminality – Meeting the Good Character Requirement

 

Good Character

To be of good character you should have shown respect for the rights and freedoms of the UK, observe its laws and fulfilled your duties and obligations as a resident of the UK. Checks will be carried out to ensure that the information you give is correct.

If you are not honest about the information you provide, and you are registered on the basis of incorrect or fraudulent information you will be liable to have British citizenship taken away (deprivation) and you may be prosecuted. It is a criminal offence to make a false declaration knowing that it is untrue. For full details see the guidance here.

 

Military Conviction or Criminal Conviction

Behaviour which is not a crime in civilian life can be a disciplinary matter in HM Forces. There are two types of non-criminal conduct (disciplinary offences):

  • Offences listed on Schedule 1 of the Police and Criminal Evidence Act 1984 (Armed Forces Order 2009), for example, misconduct towards a superior officer or using force on a sentry. These offences will appear on a criminal record and can be considered by the Home Office when undertaking a broader consideration of character, conduct and association requirement of the suitability requirements in Appendix Armed Forces.
  • Non-criminal conduct (disciplinary offences) which are not listed on Schedule 1 of the Police and Criminal Evidence Act 1984 (Armed Forces Order 2009), for example, disobeying an order or being untidily dressed. These offences must not appear on an applicant’s criminal record and if they do they must not be considered for immigration or nationality purposes.

A disciplinary or conviction in a military court (whether a Summary Hearing or Courts Martial) is not necessarily considered to be a criminal offence and therefore may not affect an application for settlement or Citizenship.  However, it is prudent to take advice prior to applying for either Indefinite Leave to Remain or British citizenship if an applicant has a criminal conviction or a service related offence.

 

Offences against military service law are set out in the Armed Forces Act 2006 and fall into two categories:

  • criminal conduct offences
  • non-criminal conduct (disciplinary) offences.

 

The Home Office will consider any criminal conduct offence imposed under service law in the same way as one imposed by a civilian court.

However, a non-criminal conduct (disciplinary) offence will not be treated in the same way as criminal convictions and should be disregarded by the Home Office for immigration and nationality purposes.  However, non-criminal conduct (disciplinary) offences, may be considered when considering character and conduct requirements under the suitability requirements of Appendix Armed Forces.

Please note, that absent without leave (AWOL) is considered a non-disciplinary offence and is therefore not normally recorded on the Police National Computer (PNC), but time spent AWOL and any punishment received, must be disclosed to the Home Office.

 

Offences dealt with in the Armed Forces (Minor Punishments and Limitation on Power to Reduce in Rank) Regulations 2009, must also be disclosed by applicants as criminal convictions.

Single criminal conduct offences which have attracted the following sentences will be disregarded by the Home Office as a conviction for immigration and nationality purposes:

  • restriction of privileges
  • stoppage of leave
  • admonition (caution or warn)
  • reduction in rank.

However, if an applicant has numerous minor punishments, particularly over a short period of time, the Home Office will consider these in line with the character, conduct and associations aspects of the suitability criteria.

 

Types of Non-criminal (disciplinary) offences – Armed Forces Act 2006

Convictions for the offences detailed below should not be recorded on the PNC and should not be treated as criminal convictions or considered when the Home Office assesses good character.  Convictions for these offences need not be disclosed by the applicant on the application form unless they include any punishment received for a period of absence without leave (AWOL).  However, it is not advisable to withhold information from the Home Office.

 

Contrary to Armed Forces Act 2006 Part 1 – Offences

Section 1 – Assisting an enemy

Section 2 – Misconduct on operations

Section 3 – Obstructing operations

Section 4 – Looting

Section 5 – Failure to escape

Section 6 – Mutiny

Section 7 – Failure to suppress mutiny

Section 8 – Desertion

Section 9 – Absence without leave

Section 10 – Failure to cause apprehension of deserters or absentees

Section 12 – Disobedience to lawful commands

Section 13 – Contravention of standing orders

Section 15 – Failure to attend for, or perform, duty

Section 16 – Malingering

Section 17 – Disclosure of information useful to an enemy

Section 18 – Making false records

Section 19 – Conduct prejudicial to good order and discipline

Section 20 – Unfitness or misconduct through alcohol or drugs

Section 21 – Fighting or threatening behaviour

Section 22 – Ill–treatment of subordinate

Section 23 – Disgraceful conduct of a cruel or indecent kind

Section 25 – Misapplying or wasting public or service property

Section 26 – Definition of public property or service property

Section 31 – Hazarding of ship

Section 32 – Giving false air signals

Section 33 – Dangerous flying

Section 34 – Low flying

Section 35 – Annoyance by flying

Section 36 – Inaccurate certification

Section 37 – Prize offences by officer in command of ship or aircraft

Section 38 – Other prize offences

Section 39 – Attempts

Section 41 – Aiding, abetting, counselling or procuring.

 

Useful information and Links

For more information see related links to:

  • Appendix Armed Forces here
  • HM Forces Criminality here
  • The Police and Criminal Evidence Act 1981 (Armed Forces) Order 2009 Schedule 1 here
  • The Police and Criminal Evidence Act 1981 (Armed Forces) Order 2009 here
  •  (Minor Punishments and Limitation on Power to Reduce in Rank) Regulations 2009 here

For information on how to contact UKVI regarding Citizenship applications here.

To request your documents to be returned here.

Posted on: 3rd September, 2020

Updated on: 18th March 2021

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Definitions of Domestic Violence and Abuse

The Home Office definition of domestic abuse and violence is considered to be any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. This can include, but is not limited to, the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

 

Other forms of abuse, which may not be violence, but equally as abusive, are considered to be controlling or coercive behaviour which is a range of acts designed to make a person subordinate or dependent.

Controlling behaviour is either:

  • isolating them from sources of support
  • exploiting their resources and capacities for personal gain
  • depriving them of the means needed for independence, resistance and escape
  • regulating their everyday behaviour

 

Coercive behaviour is either:

  • an act or a pattern of acts of assault, threats, humiliation and intimidation
  • other abuse that is used to harm, punish, or frighten their victim

 

No distinction should be made between psychological (mental) abuse and physical abuse when the Home Office assesses if a person has been the victim of domestic violence or abuse.

 

The Royal Navy has a policy of zero tolerance of Domestic Abuse and has procedures in place to provide confidential advice and support to those subjected to it. The Naval Service Family and People Support (NS FPS) or SSAFA can be approached in the first instance, they will provide a caseworker who will listen and provide information. This is a confidential service; they will not speak to your partner’s ship or unit unless you ask them to or unless there are child protection issues.

 

They will need to make sure that you and any children you have are safe, and will work with other agencies to protect you and your family.

 

For details of how to contact NS FPS, click here.

For details of how to contact SSAFA, click here.

Eligibility

The domestic violence rules do not apply to:

  • the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain in the UK
  • fiancé or fiancées or proposed civil partners
  • people seeking asylum in the UK
  • the spouse or civil partner of a foreign or Commonwealth citizen who is serving, or has served, in Her Majesty’s (HM) forces and who has not completed a minimum of 4 years’ reckonable service

 

The domestic violence rules do apply to:

  • A partner of a serving member of HM Forces who is a victim of domestic violence are:
    • they had leave as the partner of a British citizen in HM Forces
    • they had leave as a partner of a foreign or Commonwealth citizen serving in HM Forces with at least four years’ reckonable service at the date of application

 

Partners of Foreign or Commonwealth members of HM Forces with 4 years’ service may make an application for settlement based on domestic violence, this is because 4 years’ service is the point at which the sponsor could settle if discharged from HM Forces.

 

Domestic abuse may be conducted by other family members, and not just the partner.  Those who are directly related to the victim, may be in-laws or step-family.

 

If an applicant submits evidence to show that their relationship has broken down because they have been subjected to domestic violence from someone other than their partner, they can still qualify for settlement under the rule. Evidence must clearly show that the violence has been the reason for the breakdown of the relationship between the applicant and their partner, for example where the person who abuses the applicant is a member of the partner’s family and against whom the partner offers no protection.

 

It should be noted that the spouse of a serving member of HM Forces who is a victim of Domestic Violence or Domestic Abuse does not have to wait until the end of the probationary period.

 

Neither do they have to rely on the serving member to support their application.

 

A victim of Domestic Violence or abuse may apply for Indefinite Leave to Remain (ILR) on their own merit, so long as the incidents of DV have been evidenced.

 

Evidence to substantiate must include at least one of the following:

  • Non-molestation/protection order, Court conviction or relevant police caution

 

If they are not able to provide any of the mentioned pieces of evidence, they should provide at least two of the following:

  • Medical report, an undertaking given to a court by the perpetrator, a police report, letter from social services, letter from domestic violence support organisation or refuge, MARAC risk assessment, or other (UWO letters of evidenced incidences).
Evidence of Domestic Abuse

The types of evidence which may be produced and factors which should be taken into account by the Home Office when considering whether the evidence produced meets the requirements for a grant of leave can be found in the Home Office guidance. To see this evidence click here and go to pages 22 to 29.

 

Application process: You need to apply on form SET (DV). For the form and further guidance, click here. The Home Office fee is £2389 per applicant. If you can show that you are destitute, you do not have to pay the fee. You will need to evidence this – please see the next section.

Fee Concession & Application for Recourse to Public Funds
Eligibility and criteria for those applying for leave to remain under the destitution domestic violence (DDV) concession

If you are a victim of domestic abuse and you do not have an income of your own and you find yourself destitute, you may be eligible for the Home Office fee to be waived and granted access to public funds.

 

This section informs you of the requirements which must be met for an applicant to qualify for temporary leave outside the immigration rules, under the destitution domestic violence (DDV) concession.

 

Definition of Destitution

A person is considered destitute by the Home Office when they do not have adequate accommodation or any means of obtaining it, or they cannot meet their essential living needs.  It could also be when a person has demonstrated, by way of evidence, that they would be rendered destitute by payment of the Home Office fee, because whilst they have adequate accommodation and can meet their essential living needs:

  • they have no additional disposable income such that either:
    • they could pay the Home Office fee; but
    • payment would compromise their ability to continue to accommodate themselves adequately or meet their other essential living needs

 

From 1 April 2012, those who meet the DDV concession criteria are granted 3 months leave outside the immigration rules (LOTR) with a condition code that does not restrict access to public funds.  Only those eligible to apply for leave under section DVILR under Paragraph 40 of Appendix Armed Forces are eligible for the DDV concession.

 

The concession only applies to applicants who have previously been granted leave to enter or remain as the spouse; civil partner; unmarried or same-sex partner of any of the following:

  • British citizen;
  • Settled person;
  • Member of HM forces who is exempt from immigration control and has served for at least 4 years

 

The Home Office will reject an application for the DDV concession, from those whose partner:

  • is not at the time of application a British citizen or settled in the UK;
  • was not at the time when the leave as a partner was first granted, a British citizen or settled in the UK;
  • is not a serving member of HM forces, considered exempt from immigration control with 4 years’ reckonable service.

 

The concession applies to those who from 1 December 2013 were last granted leave under paragraph 23, 26, 28 or 32 of Appendix Armed Forces and are the partner of a member of HM forces who is British, settled, still serving and considered exempt from immigration control and has at least 4 years’ service as a regular, or was granted limited leave to remain on discharge; and

  • claim that their relationship with their spouse, civil partner, unmarried or same sex- partner has broken down as a result of domestic violence;
  • claim to need access to funds in order to leave the relationship;
  • intend to apply for indefinite leave to remain as a victim of domestic violence under paragraph 40 of Appendix Armed Forces or section DVILR of Appendix

 

To benefit under the destitution domestic violence (DDV) concession, victims of domestic violence and abuse who need access to public funds, must complete and submit the LOTR (DVV) form to the Home Office by email.

  • For online application form and guidance, click here.
  • To apply for destitution domestic violence (DDV) concession, click here.

 

In order to qualify for a grant of limited leave under the DDV concession, an applicant must:

  • have submitted a completed LOTR (DDV)
  • meet the eligibility requirements of the DDV concession

 

Those who meet the criteria of the DDV concession should be granted leave outside the rules (LOTR) (DDV) for 3 months on conditions permitting employment and immediate access to benefits (code 1A).

 

The Home Office will send the applicant a letter which confirms they have been granted LOTR (DDV) and issue a status document by way of a biometric residence permit (BRP).

 

After being granted 3 months leave to remain, with access to public funds and a concession of the Home Office fee, the applicant should submit their SET(DV) application before their 3 months’ limited leave expires. The Home Office encourages those who are granted 3 months’ LOTR to submit a SET(DV) application within 8 weeks of their initial grant to make sure their case is considered before their leave under the concession expires.

 

If an applicant fails to submit their SET(DV) application within the 3 months limited leave, they will become an overstayer and may become subject to removal.

 

It is important to note that if leave is granted under the DDV concession, the applicant must make a separate application for Department for Work and Pension (DWP) benefits or housing benefits and will be assessed against the normal DWP criteria.

 

A grant of leave under the DDV concession is recognition that an applicant is destitute at the time the request is decided and does not guarantee that any subsequent application for leave under the domestic violence rules will be granted.

Summary
  • Part 6 of Appendix Armed Forces applies to partners of members of HM forces who are the victim of domestic violence.
  • Domestic Violence and Domestic Abuse incidents must be documented & evidence produced.
  • The dependant is not required to meet the 5 years’ probationary period.
  • Application form Set (DV) cost £2389 per applicant
  • If destitute, they may apply for a concession of the fee and recourse to public funds.
Army Families Federation (AFF) F & C Support Project

The AFF Foreign & Commonwealth Specialist is an OISC Level 2 qualified advisor who has been providing qualified immigration advice and practical support for Army families for a number of years. She has developed specialist knowledge of supporting F&C victims of Domestic Abuse (DA). Through a close working relationship with NFF, AFF are able to offer this specialist DA support to Royal Navy, Royal Marines personnel and their families.

 

Funded by the Lloyd’s Patriotic Fund, AFF is able to provide practical one-to-one support to F&C families dealing with domestic abuse.

 

The support can be offered in any location in the UK or overseas. AFF will do all the substantive work required to make the applications, including collating all evidence, completing the forms and writing letters of representation.

 

If you are currently supporting an F&C spouse in these circumstances who needs immigration advice, then please contact AFF at fcsupport@aff.org.uk

 

If you are the spouse in need of support, you can contact AFF directly, but they would prefer that you are referred to them via a NS FPS or SSAFA caseworker.

 

Click here for further guidance on domestic abuse for the Armed Forces community.

Qualified Immigration Advice

Applications made for ILR as a victim of domestic abuse, or those made under Article 8 of the Human Rights Act, should not be attempted without qualified immigration advice.

 

If you use the AFF support project detailed above then the AFF’s F&C Specialist is a qualified advisor, registered with the Office of the Immigration Services Commissioner (OISC) to provide immigration advice up to Level 2. If you wish to use a different advisor, then you should ensure they are also registered with the OISC to provide advice up to Level 2 or 3. Currently the Naval Families Federation are only qualified to level 1 and therefore can’t assist with these types of applications. NFF have a close working relationship with GBS UK Immigration who are based in Portsmouth and have a specialist in Armed Forces Immigration law. For their contact details and to see if they can assist you please see here.

 

Can I get Legal Aid?

Since April 2013, Legal Aid has only been available for applications under the DV rules.  Legal advisors can claim some of their costs back for these cases, but there is a cap on the amount they can claim. You may find that the amount of work they are willing to do is limited to completing the application form. Law centres are a good place to start if there is one in your area.

 

What should the immigration adviser do?

A good immigration adviser will begin by assessing the merits of your case. If they consider that your chances of being able to remain in the UK are very slim, then they should inform you of this. If you decide to go ahead with an application, then your immigration adviser should assist with the following:

 

  • A detailed statement: This provides the opportunity for you to put the facts of your case to the decision maker (the UKBA caseworker). Your immigration adviser should draft this statement using the information you have given them. It should tell your story in a compelling and persuasive way so that the caseworker will be convinced of the merits of the case.
  • Supporting documents: Your immigration adviser should give advice on the evidence that needs to be provided with your application. The facts that you put in the statement above will need to be corroborated by other types of evidence, usually documents such as bank statements, photos, bills, letters, and reports – medical or other expert reports. A UKBA decision maker is not required to accept the facts in the statement if they can reasonably be expected to be supported by other evidence.
  • Letter of representation: The adviser should also prepare a letter in which they give the legal argument for your right to remain in the UK. They will refer to immigration rules where appropriate, or to other, similar, cases where judges have ruled in favour of a right to remain.

 

What happens if my application is refused?

If you are given the right to appeal, then your adviser should discuss the merits of this with you. They should take you through the process and the timescales.

You will only have ten days following receipt of your refusal notice (Notice of Decision) to lodge the appeal. On average, it takes six months for an appeal to be heard at the immigration tribunal. Appeals can be very expensive and are not covered by Legal Aid.

 

Complaints about immigration advisers

If you think your immigration adviser has given you poor advice or an inadequate service, you can complain to the Office of the Immigration Services Commissioner (OISC).

You can complain about any adviser, solicitor, barrister, OISC regulated adviser or unregulated person operating within the UK and providing advice and services relating to immigration to the UK

Useful information and links
  • To see the guidance that the Home Office follows when considering applications from people who claim to have been victims of domestic violence or abuse, click here.
  • For guidance on the eligibility and criteria for those applying for leave to remain under the destitution domestic violence (DDV) concession, click here.
  • ‘No defence for abuse’: a strategy to tackle domestic abuse within the defence community. To see the MOD strategy, click here.
  • For information and guidance for those affected by or dealing with cases of domestic abuse in the Armed Forces community, click here.
  • For information about domestic violence and abuse in the Armed Forces and the help available to victims, perpetrators and the chain of command,  click here.
  • For information for Armed Forces personnel and their families who are stationed overseas, click here.
  • For feedback on common concerns raised by victims and perpetrators from the Armed Forces Community, click here.
  • Handbook to help and inform civilian support services who are working with Armed Forces families affected by domestic abuse, click here.
Posted on: 3rd September, 2020

Updated on: 18th March 2021