Borders, Citizenship and Immigration Bill [HL]

The first amendment in the group maintains the current position whereby the maximum permitted absences from the UK during the qualifying period for naturalisation is calculated as an average over the total of the qualifying period. This will ensure that a person who is absent in a particular year for more than 90 days for legitimate reasons of business, family crisis or illness abroad does not have to restart the clock on the qualifying period upon his return. It addresses one aspect of the problem that was identified by the noble Baroness, Lady Hanham, when she spoke of migrants who, ""will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again".—[Official Report, 11/2/09; col. 1135.]" The current rules, which are set out in chapter 18 of the nationality instructions, allow for an exceptional absence for business or family reasons to be offset by shorter periods of absence in other years, but the Bill requires that the 90-day limit be rigidly observed in each year of the qualifying period. For example, a tier 1 migrant employed by a financial services company travelled overseas extensively to secure business, clocking up 150 days in the first year of his stay in this country. This was not a problem if the average for the whole of the qualifying period did not exceed 90 days, but he will no longer be able to do that. We understand that the Government are against the amendment because they think that a fixed 90-day limit will promote integration. As far as we are aware, there is no research to show that migrants who relied on averaging over the many years that it has been in force are less integrated than others who had kept within the 90-day limit for each individual year. If the Minister has any research on the matter, perhaps he will enlighten us. Conversely, as the effect of the Government’s proposal is that a person who is unavoidably absent for more than 90 days has to start the qualifying period again from zero, that person will take much longer to become integrated. Our second amendment provides that where a person spends two periods of time in the UK with a qualifying immigration status separated by a period of lawful but not qualifying immigration status, then the two qualifying periods can be aggregated for the purposes of the calculation. An example of how this might operate is that of a worker who, after 18 months in a job, takes a year off to do a full-time MBA degree and then returns to his former or to another employment. Without the amendment, that first 18 months would not count towards the qualifying period because the time spent on the MBA, although it is a lawful immigration status, is not a qualifying immigration status within the meaning of Clause 37(11). The Immigration Law Practitioners’ Association cites the case of a person who studied in the UK for three years and then worked for a single employer for a month short of five years, when at that point she was made redundant. Because she had a three-month notice period, the employer wrote in support of her ILR application and it was successful. But if the studies, instead of being at the start of the time she was spending in the UK had been in between two periods of work adding up to the same total, she could not have succeeded if this Bill had been then in force. Amendment 58 makes the same point about averaging in Clause 38 but deals with family members. It is even more likely that a spouse or civil partner would have a family emergency in his country of origin which requires him to be absent for a period of more than 90 days than a worker whose job could be at stake as a result of the long break, but the arguments are much the same. I beg to move.