Naturalisation Qualifying Period

[arbi580]

Hi there

I am asking this question on behalf of my father. He is 69 years old. He came to the UK legally on 11 May 2011 on a visit visa. He has a clean immigration history and is of good character with no civil or criminal issues.

He had a Multiple entry Visit Visa and this was just one of many visits to the UK. While on that visit, we (his sons) decided in Sept 2011 that we would apply for his ILR on the basis of him being our dependant due to old age as all of his sons (all British Citizens) were in the UK and he had no family back home.

The ILR was granted in Feb 2012. So he has had ILR for over 4 years now. Since then he has got Cancer and been in and out of hospital many times over the past 3 years.

Having read this forum and going by Section 2.3 of ANNEX B to Chapter 18 of British Nationality Act 1981, I am lead to believe that we can apply for him to be Naturalised from 12 May 2016 as he was legally present in the UK from 11 May 2011 and has not been out of the UK for 90 days in the last year or 450 days over the last 5 years.

What confuses me about this is the requirement of the Borders, Citizenship and Immigration Act 2009 that you need to have a "qualifying immigration status for the whole of the qualifying period". See link below

http://www.legislation.gov.uk/ukpga/200 ... ralisation

I can't tell if this requirement is now in place or of it is yet to be implemented as if I look at the link below the section relating to qualifying immigration status appears a Prospective change.

http://www.legislation.gov.uk/ukpga/1981/61/schedule/1

So the question is:

(a) Are the requirements of Borders, Citizenship and Immigration Act 2009 now being practised and do you need to have a "qualifying immigration status for the whole of the qualifying period".

(b) Can we apply on 12 May 2016 even though he was on visit visa on 11 May 2011, i.e. count the period while he was on visit visa or does he have a qualifying immigration status in which case we have to count 5 years from Feb 2012 when he got his ILR?

(c) Provided that we can count the period from 11 May 2011, are we also correct in assuming that no immigration breach has occurred and the Good Character Requirement is met. He arrived on a Visit Visa in May 2011 and then stayed on. Till he got his ILR in Feb 2012 he was still on the visit visa although his passport was in possession of the Home Office and was returned in Feb 2012 with his ILR sticker. We know you can't stay more than 6 months on a visit visa, but are we correct that the clock stopped ticking 4 months into his visit in Sept 2011 when he applied for ILR and therefore he did not overstay his visa as he was waiting for a decision on his ILR application?

(d) Are we correct that he does not need to pass life in UK or english requirement due to his age being over 65?

(e) As he is retired and lives with me, there is not much I have in the way of P60s or wage slips. So the only we have of proving residence are his passports showing his entry exit stamps. Will that suffice? We will also be submitting some hospital paper work showing he has been hospitalized in the UK alot from July 2013. However we do not have much for the period from May 2011 - July 2013 except his passports for the period. We have bank statements but I read that these are not accepted as proof of residence. Is there anything else that I can submit? Family pictures from the period?

I look forward to hearing from you and thank you all for taking the time to read this and for any assistance that you may provide.

Best regards
Arbi580

[noajthan]

Are you sure father has ILR? In what format (BRP or ??) does he have confirmation of this status?

[arbi580]

Hi Noajthan

Yes. The facts provided above are accurate. He has ILR as stated above. He has it in the form of a Residence Permit stuck in his passport not a BRP Card, as he got it just before Home Office started doing Biometric Cards.

BR
Arbi580

[noajthan]

Hi Noajthan

Yes. The facts provided above are accurate. He has ILR as stated above. He has it in the form of a Residence Permit stuck in his passport not a BRP Card, as he got it just before Home Office started doing Biometric Cards.

BR
Arbi580

I'm still puzzled how father achieved this happy state.
It's not usually possible to switch from visit visa to another on UK migration route.

Are you perchance an EEA national sponsoring dependent father?

Perhaps what father actually has is a 5 year
Residence Card (issued under EU free movement route to a non-EEA dependent) rather than ILR (under UK immigration regs)?

[arbi580]

Me and my brothers are all Naturalized Brits. When my father turned 65 we applied for him and my Mom to get ILR based as our dependants. Hope that clarifies and makes sense!

[arbi580]

With regard to switching him from being on Visit to ILR, we did through our solicitor with a whole bunch of supporting documentation in 2011. Went with no questions or enquiries whatsoever. I know its uncommon and we are rather proud at having accomplished it!

[noajthan]

With regard to switching him from being on Visit to ILR, we did through our solicitor with a whole bunch of supporting documentation in 2011. Went with no questions or enquiries whatsoever. I know its uncommon and we are rather proud at having accomplished it!

That ia a mystery to me; will wait for other input on that.

a) If not married to BC, 12 months free of immigration time restrictions is what's normally required, eg ILR.

b) Don't know in this somewhat unusual case

c) Ditto

d) Correct; one of benefits of age

e) Passport/s should suffice

[arbi580]

Actually its not that complicated to be honest. All I really need to know is whether the current applicable rules are as per Borders, Citizenship and Immigration Act 2009 which need you to have a "qualifying immigration status for the whole of the qualifying period" or the rules are still as in Chapter 18 of British Nationality Act 1981 which shows that the section relating to qualifying immigration status is a Prospective change (not yet implemented) as per the link: http://www.legislation.gov.uk/ukpga/1981/61/schedule/1

As long as the applicable statute is the BNA 1981 then I know I can count the visit period as what is required is presence at the start of the qualifying period.

[noajthan]

As per my understanding, for a s 6(1) application, ILR & proof of being physically present in UK 5 years previous to date of application are what's required.

[arbi580]

Thanks for the response. Yes...I've been reading up Chapter 18 just now. From what I can see, based on the information I have provided above being correct, would you agree that my Dad qualifies under section 6(1)

on the date of application, he is
a. is of full age - Yes
b. is of full capacity (see Annex A); and either - Yes
c. meets the residence requirements set out in 18.2.1.2 - Yes - See Below

and at the time of consideration
a. is of good character (see Annex D); and - Yes
b. has a sufficient knowledge of the English Not Applicable but he speaks it fluently
c. has a sufficient knowledge of life in the United Kingdom - Not Applicable
d. remains of full capacity (see Annex A); - Yes
e. intends, if a certificate of naturalisation as a British citizen is granted to have his/her home in UK - Yes

18.2.1.2 The residence requirements referred to in 18.2.1.1 above are that the applicant was:
a. in the UK at the beginning of the period of 5 years ending with the date of the application - Yes - he was here legally on a Visit Visa
b. not absent from the UK for more than 450 days in that 5 year period; - Yes
c. not absent from the UK for more than 90 days in the period of 12 months ending with the date of the
application - Yes
d. not, on the date of the application, subject under the immigration laws to any restriction on the
period of stay in the UK; - Yes and
e. not, at any other time in the 12 month period ending with the date of the application, subject
under the immigration laws to any restriction on the period of stay in the UK; and - Yes
f. not, at any time in the period of 5 years ending with the date of the application, in the United Kingdom
in breach of the immigration laws. - I think so as we applied within 4 month of him arriving on visit rather than full 6 months - so he applied to have his status changed prior to old status expiring

What do u reckon - have we ticked all the boxes??

BR
Arbi580

[CR001]

Hi Noajthan

Yes. The facts provided above are accurate. He has ILR as stated above. He has it in the form of a Residence Permit stuck in his passport not a BRP Card, as he got it just before Home Office started doing Biometric Cards.

BR
Arbi580

I'm still puzzled how father achieved this happy state.
It's not usually possible to switch from visit visa to another on UK migration route.

Are you perchance an EEA national sponsoring dependent father?

Perhaps what father actually has is a 5 year
Residence Card (issued under EU free movement route to a non-EEA dependent) rather than ILR (under UK immigration regs)?

@noajthan - Adult Dependent Relative visa (ILR) issued before the rules changed and became so tough and impossible. ADR was possible from visitor visa status back then if you could prove the requirements.

[noajthan]

...
@noajthan - Adult Dependent Relative visa (ILR) issued before the rules changed and became so tough and impossible. ADR was possible from visitor visa status back then if you could prove the requirements.

@CR001, noted; thanks - it makes sense now.

I was wondering why more people weren't taking this route as it seems so easy and I know next to noone does this (ADR) anymore.

[noajthan]

Thanks for the response. Yes...I've been reading up Chapter 18 just now. From what I can see, based on the information I have provided above being correct, would you agree that my Dad qualifies under section 6(1)

...

What do u reckon - have we ticked all the boxes??

BR
Arbi580

Based on stated facts it appears in order.

[arbi580]

Thanks for shedding light on that CR001.

I would really appreciate it if a couple of people in the know double check my situation and let me know if I'm on the right track.

Could someone also clarify my confusion about the requirements of Borders, Citizenship and Immigration Act 2009. When I read it, the Borders, Citizenship and Immigration Act 2009 was changing the BNA 1981 and adding new bits to it. However when I read the BNA 1981 online, the changes about having a "qualifying immigration status for the whole of the qualifying period" appear as prospective. What is the deal with that? Is it being practised?

Many thanks

[arbi580]

Thanks again for all your input Noajthan!

[arbi580]

Hi

I am just getting back as I am still a little uncertain about this. From what I can see Noajthan seems to think we should be okay to apply but would really like a couple of others to confirm if what I am doing is okay / possible...please! I have seen plenty of spouse cases (3 year period) on this forum where they have used the visit period.

Also no one has really picked up / commented on the question I asked earlier about the requirements of Borders, Citizenship and Immigration Act 2009.

Many thanks again for any assistance.

[CR001]

To keep things simple and uncomplicated, is there any reason why you/he can't wait till Feb 2017 to apply for 5 years residence (ILR)?

[arbi580]

The guy is a 70 year old cancer patient who has luckily gone into remission last year. He would like to use this window of opportunity to travel the world (which is one thing he loves to do) without all the visa issues he faces on his current Pakistani passport.

And time is of the essence for him because his sort of cancer always comes back, so its just a case of him making the most of his time now.

Although his cancer is in remission he has ongoing issues with his blood counts which means he has to go to hospital every couple of weeks which makes organizing any travel which requires obtaining visas complicated as the obtaining of a visa to most countries normally requires going to embassy appointments, pre arranging flights, hotels etc. which is simply not possible in his condition. So basically this lets him take on ad-hoc travel.

What I don't get is there are various posts on this forum citing Section 2.3 of ANNEX B to Chapter 18 of British Nationality Act 1981 states that all he needs to do is be physically present in the U.K. for the 5 year period (3 year in case of spouse) and various people stating on this forum that they have been naturalised using their visit period. Has anything changed or is there any reason why my dad cannot do the same?

Also is there any point emailing the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk) with his circumstances to check his eligibility?

BR
Arbi580

[arbi580]

We would really appreciate it if someone could point us in the right direction...I've provided a lot of information - all of it accurate. We would be very grateful if someone who knows about this sort of stuff could assist!

[noajthan]

We would really appreciate it if someone could point us in the right direction...I've provided a lot of information - all of it accurate. We would be very grateful if someone who knows about this sort of stuff could assist!

You may be over-thinking this but I can understand you have a natural concern for your parent.
You have been pointed in right direction by the collective hive-mind of the forum...

For example:

Based on stated facts it appears in order.

Your next step is to invest £50-£70 in an NCS appointment at local council and see if NCS admin person concurs.
You risk only £70 or so rather than full naturalisation fee.

If you wish another form of verification, or 'speedier' response, you are ofcourse free to contact an OISC advisor or immigration lawyer; no guarantees are available either way.

[secret.simon]

Most modern Acts of Parliament do not come into effect immediatly on Royal Assent, but give the government power to bring specific sections into force by "commencement orders".

Unfortunately there is no definitive list of commencement orders that I could find. A Member of the House of Lords had better luck in 2010.

It seems (I am not sure) that Sections 39-41 of the Borders, Citizenship and Immigration Act 2009 have not yet been commenced, hence the "Prospective" tag on them on the Legislation.gov.uk website.

In any case, your father's application should be protected under Section 58(9)-(11) of that Act, which exempts people who already have ILR from the application of these provisions for two years after the commencement of the sections listed above.

What I don't get is there are various posts on this forum citing Section 2.3 of ANNEX B to Chapter 18 of British Nationality Act 1981 states that all he needs to do is be physically present in the U.K. for the 5 year period (3 year in case of spouse) and various people stating on this forum that they have been naturalised using their visit period.

This is a completely different requirement. The requirement to be physically (and legally) present in the UK at the beginning of the five year period is a requirement of Schedule 1, Section 2(a) of the BNA 1981 and has been a requirement since 1983. That only requires a continuous legal (Section 2(d)) presence of five years. Such legal presence can include a period under a visit visa.

I hope that clarifies matters and eases your mind.

[arbi580]

Thanks Noajthan...I picked up and thanked you for your earlier reply, but as you were the only one who had replied, about it all seeming in order, we just wanted a bit more assurance before we bit the bullet! When you say hive mind, does it mean that the mods consult and reach a conclusion. If so, then I am much more confident if the collective opinion is that it all seems in order. I wrote a response to an earlier post by Char and was hoping he too would get back and weigh in.

We were going to use NCS anyway, but from my last interaction with them for my little brothers case, they just walk the line and get a blank look when the case has even the slightest hint of complication.

I called the Home Office and they said I should email the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk) with his circumstances to check his eligibility. What do you think? Should we ask them?

I will also call an OISC advisor per your suggestion and get their views.

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

[CR001]

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

Please see secret.simon's response (click) above your post. He details it very nicely for you.

[secret.simon]

"Hive mind" is a reference to the collective wisdom of the forum. If somebody wanted to advise adversely or otherwise regarding your application on these forums, s/he would have done so. That is the concept of the "hive mind" - collective thinking.

The moderators are not lawyers, they are just contributors who have the time, inclination and manners to moderate the forums (i.e. ensure that the rules are being observed).

As an aside, did my post not answer your question?

Can I suggest that for absolute certainty, you submit an FoI request to the Home office (email: foirequests@homeoffice.gsi.gov.uk) asking specifically if Sections 39-41 of the Borders, Citizenship and Immigration Act 2009 have been commenced and if so, can they provide a copy of the commencement order?

If they have not been commenced, you have nothing to fear and if they have been, they do not apply to your father's case if they were commenced less than 2 years ago.

EDIT: Thanks, CR001

[noajthan]

Thanks Noajthan...I picked up and thanked you for your earlier reply, but as you were the only one who had replied, about it all seeming in order, we just wanted a bit more assurance before we bit the bullet! When you say hive mind, does it mean that the mods consult and reach a conclusion. If so, then I am much more confident if the collective opinion is that it all seems in order. I wrote a response to an earlier post by Char and was hoping he too would get back and weigh in.

We were going to use NCS anyway, but from my last interaction with them for my little brothers case, they just walk the line and get a blank look when the case has even the slightest hint of complication.

I called the Home Office and they said I should email the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk) with his circumstances to check his eligibility. What do you think? Should we ask them?

I will also call an OISC advisor per your suggestion and get their views.

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

No, the hive-mind is not organised as formally as that (and ofcourse I've never met my co-moderators, female and male)
- it's just how I see an internet bulletin board or forum tending to work:
kind of organically with valid opinions bubbling up and surfacing over time.

NCS are not immigration advisors - it's just another level of basic sanity-checking (but they can and do come up trumps at times).

Pro tip: do not rely on the HO helplines; they can be unreliable and are not held accountable for the advice offered.
Ofcourse neither are we here on this board, but we are not HO.

I think Simon has just given an erudite opinion on the 2009 question.