Why the rule of being in UK 5yrs before naturalisation?

[seasky]

Even bureaucracies tend to have logic. the 90/450d has some logic (physical connection to new country of citizenship)

But the 5 years rule ? (why would a random business trip/vacation matter?)

[secret.simon]

If it helps any, this is not a rule that the Home office made up recently. It was written into the British Nationality Act 1981 when it went through Parliament.

that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application,...

Crucially, Parliament, in its wisdom, also did not give the Home Secretary any discretion to ignore this requirement.

If you are interested in finding out the specific reason, feel free to go through the Hansards of the debates on that bill.

My conjecture (and it is just that) is that it was to prevent a person from effectively applying for naturalisation after a presence of only four years in the UK, by effectively claiming a period when s/he was not in the UK as a part of their five year residence period.

[seasky]

secret.simon.

thx for this.

I am new to BC and learning (while waiting for a complex ILR...) my other questions is how set in stone is the 90/450days?

I only live in UK but travel a lot for work (and a little for holidays). My work (in my humble opinion....) is important for the UK, advancing a lot of exports and bringing back technological edge in my industry. In fact I am often invited by 'the UK government' to international events (e.g. by our embassies abroad to speak at local conferences or represent the UK at awards etc under the 'GREAT Britain' initiative. Does this sway anything with BC decision if going over the 90/450 (by not a lot)?

[Casa]

I assumed you've read through the information in the link posted by secret.simon. In which case you will have noted the following regarding discretion on absence:

9(1)For the purposes of this Schedule a person shall (subject to paragraph 2(b)) be treated as having been absent from the United Kingdom during any of the following periods, that is to say—
(a)any period when he was in the United Kingdom and either was entitled to an exemption under section 8(3) or (4) of the M1Immigration Act 1971 (exemptions for diplomatic agents etc. and members of the forces) or was a member of the family and formed part of the household of a person so entitled;
(b)any period when he was detained—
(i)in any place of detention in the United Kingdom in pursuance of a sentence passed on him by a court in the United Kingdom or elsewhere for any offence;
(ii)in any hospital in the United Kingdom under a hospital order made under [F21Part III of the Mental Health Act 1983] or section 175 or 376 of the M2Criminal Procedure (Scotland) Act 1975 or Part III of the Mental Health [F22(Northern Ireland) Order 1986], being an order made in connection with his conviction of an offence; or
(iii)under any power of detention conferred by the immigration laws of the United Kingdom;
(c)any period when, being liable to be detained as mentioned in paragraph (b)(i) or (ii) of this sub-paragraph, he was unlawfully at large or absent without leave and for that reason liable to be arrested or taken into custody;
(d)any period when, his actual detention under any such power as is mentioned in paragraph (b)(iii) of this sub-paragraph being required or specifically authorised, he was unlawfully at large and for that reason liable to be arrested.

If none of these apply, your level of 'importance' to the British government or the UK economy won't be seen as a concession to the rules.

[seasky]

I assumed you've read through the information in the link posted by secret.simon. In which case you will have noted the following regarding discretion on absence:

9(1)For the purposes of this Schedule a person shall (subject to paragraph 2(b)) be treated as having been absent from the United Kingdom during any of the following periods, that is to say—
(a)any period when he was in the United Kingdom and either was entitled to an exemption under section 8(3) or (4) of the M1Immigration Act 1971 (exemptions for diplomatic agents etc. and members of the forces) or was a member of the family and formed part of the household of a person so entitled;
(b)any period when he was detained—
(i)in any place of detention in the United Kingdom in pursuance of a sentence passed on him by a court in the United Kingdom or elsewhere for any offence;
(ii)in any hospital in the United Kingdom under a hospital order made under [F21Part III of the Mental Health Act 1983] or section 175 or 376 of the M2Criminal Procedure (Scotland) Act 1975 or Part III of the Mental Health [F22(Northern Ireland) Order 1986], being an order made in connection with his conviction of an offence; or
(iii)under any power of detention conferred by the immigration laws of the United Kingdom;
(c)any period when, being liable to be detained as mentioned in paragraph (b)(i) or (ii) of this sub-paragraph, he was unlawfully at large or absent without leave and for that reason liable to be arrested or taken into custody;
(d)any period when, his actual detention under any such power as is mentioned in paragraph (b)(iii) of this sub-paragraph being required or specifically authorised, he was unlawfully at large and for that reason liable to be arrested.

If none of these apply, your level of 'importance' to the British government or the UK economy won't be seen as a concession to the rules.

Thank you Casa for sharing your knowledge and experience. Not sure what the fact that if you are under detention/mental hospitalisation has anything to do with my question. Saying that I now see there is this that shows THERE IS DISCRETION by the secretary of state and my question is it actually used in the real world?:

2F2(1)If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 do all or any of the following things, namely—
(a)treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) or paragraph 1(2)(b), or both, although the number of days on which he was absent from the United Kingdom in the period there mentioned exceeds the number there mentioned;

(b)treat the applicant as having been in the United Kingdom for the whole or any part of any period during which he would otherwise fall to be treated under paragraph 9(1) as having been absent;

[Casa]

4.1.4 It would be extremely rare for absences exceeding 900/540
days to be waived (but note special provisions for current and
former members of HM Armed Forces – see Annex B(i)).
Applicants with absences exceeding 900/540 days should
normally be refused and invited to re-apply when they are
better able to bring themselves within the statutory
requirements. If the circumstances of an individual case
suggest the waiver of absences on this sort of scale, the
papers should be considered at a senior level.

[seasky]

4.1.4 It would be extremely rare for absences exceeding 900/540
days to be waived (but note special provisions for current and
former members of HM Armed Forces – see Annex B(i)).
Applicants with absences exceeding 900/540 days should
normally be refused and invited to re-apply when they are
better able to bring themselves within the statutory
requirements. If the circumstances of an individual case
suggest the waiver of absences on this sort of scale, the
papers should be considered at a senior level.

Again Casa thx for the response. This seems to come from a guidance document (as per the wording) can you link to it?

[Casa]

4.1.4

https://www.gov.uk/government/uploads/s ... r_18_B.pdf

[secret.simon]

Apart from Casa's link to Chapter 18 of the detailed Nationality Instructions, the absence requirements are also summarised on Pages 7 & 8 of the more accessible Booklet AN.

If you are not exceeding the 90/450 requirements by much (the more specific, the more we can guide) and you have been invited abroad by arms of HMG (and you have documentary proof of such invitations), I think that discretion may be exercised.

The thing with discretion is that if is often a matter of proportionality. If your absences is approaching say 600 and the invitations abroad only amount to say two days worth, that may not count for much. If your absences were about 540 and you were invited by HMG say a dozen times, discretion is more likely to be exercised.

[seasky]

Apart from Casa's link to Chapter 18 of the detailed Nationality Instructions, the absence requirements are also summarised on Pages 7 & 8 of the more accessible Booklet AN.

If you are not exceeding the 90/450 requirements by much (the more specific, the more we can guide) and you have been invited abroad by arms of HMG (and you have documentary proof of such invitations), I think that discretion may be exercised.

The thing with discretion is that if is often a matter of proportionality. If your absences is approaching say 600 and the invitations abroad only amount to say two days worth, that may not count for much. If your absences were about 540 and you were invited by HMG say a dozen times, discretion is more likely to be exercised.

Thanks, secret.simon, great stuff.

I now know to be careful in my travels, though I will never not travel when work needs it (holidaying in Scotland and Cornwall I guess..... ah tour of Islay, Yummy!)

Don't think I will go too over board, depends when I get my ILR (any days beyond will be actual days for HMG, more or less).

My next learning quest on this forum is it worth becoming a BC (only thing that comes to mind is non-dom status, but have done zero research on pros/cons)

[secret.simon]

is it worth becoming a BC

That is a question that only you can answer for yourself.

It is worth keeping in mind that if you do become a British citizen and then decide to renounce it (for whatever reason), your ILR will have been extinguished and you would need to start an immigration journey from scratch. There have been a few threads on these forums exploring this point.

only thing that comes to mind is non-dom status

Domicile is a separate topic altogether and not related to immigration, so these forums are not the best place to cover it.

Just a few quick points to note - Domicile has an impact on things as diverse as marriage, divorce and the division of property in case of divorce and may also affect the execution of your will. It is not just a tax saving device. Also, domicile is not a status that one gets by filling papers. Courts would have to make a finding of fact with regards to it.

[seasky]

Thanks... I only mentioned non-dom as it was something mentioned by EY when they advised me on setting up the company (and I thought as a BC you can not by definition claim non-dom?). I don't even know the value as entrepreneurs relief here in UK is very good (UK is great place to be tech entrepreneur, except for t1E visa was not well thought out and being abused too)

Other than taxation and issues of your home country, e.g. having to give up PP (not an issue for me...) any great threads here on pros/cons of BC?

[vinny]

x) A domicile of dependency arises for a person who is legally dependent on another; that person takes on the domicile of the person on whom he is dependent (6R-078); a person under the age of 16 is legally dependent and cannot acquire an independent domicile; this issue potentially arises on the facts of this case given that the Respondent's father became a naturalised British Citizen while the Respondent was 15 years old; the question arises as to whether the fact of the naturalisation (in the context of the whole) was sufficient to indicate that the Respondent's father had acquired a domicile of choice in 1960 in England; naturalisation or citizenship is not decisive (see Barlow Clowes at [18]);

A person can acquire a domicile of choice without naturalisation. (Dicey, page 136.). On the other hand, citizenship is not decisive: Wahl v Wahl [1932] 147 LT 382. An intention to be buried in a particular place has in some circumstances been treated as an important factor, but in other cases discounted (Dicey, page 140). If a person leaves a country to evade his creditors, he may lose his domicile there, unless he plans to return as soon as he had got rid of his debts.

See also AB (Surrogacy; Domicile) [2016] EWFC 63 (07 March 2016)

[secret.simon]

Thank you for the case law on the relationship between domicile and naturalisation, vinny. Is the Dicey referenced in the second quote the A.V.Dicey of "parliamentary sovereignty" fame?

[vinny]

Yes.

[plat1n]

So why 5 years + 12 months (6 years in total) for EU citizens? Why there is this extra 12 months?

[CR001]

So why 5 years + 12 months (6 years in total) for EU citizens? Why there is this extra 12 months?

It is the same even for non-EU citizens (at least those not married to a British citizen). You are not being discriminated against so don't take the requirement personally.