silverchloride wrote:Indguru90 wrote:Silverchloride, do not waste time (and money, depending on the local authority) on rescheduling the NCS appointment. The NCS has given you the correct information about the 10 day waiveable period.
Nationality Instructions Chapter 18 Annex 2, para.7.5(c) provides: "Discretion to disregard immigration time restrictions in the final 12 months may normally be exercised if... the period of limited leave was less than 10 days at the beginning of the 12 month period before the date of application"
If you attend your NCS appointment 6 days "early", because the period is below the 10 day threshold, it is waived as a matter of routine discretion. You're fine attending on 17 August.
Hmmm yeah, I find it quite odd they gave me the appointment.... Plus looking at their response above, I don't think they are looking at 'date of NCS appointment is the date of application' they are looking at when Home Office will recieve it and look at it...
Ideally speaking, I'd like to get an appointment asap but I don't want to risk going down the route of 'discretion', as I keep reading these horror stories of how they refuse naturalisation on smal lthings... Quite confused now!
I don't think there's anything odd about their giving you the appointment early. It's probably not the first time this has been done. This is in line with UKVI guidance. The NCS will
not however hold on to your application until 23 August. The date of the application is the date of receipt by the NCS, as pointed out by other posters.
Use of the word "discretion" is admittedly very confusing. Think about it as there being different types/levels of discretion, they don't all mean the same thing:
- As a technical matter, the entire naturalisation process is discretionary - nobody is legally entitled to be naturalised. Let's call this the
overarching discretion. The legislation lays down minimum requirements that
must be met before the Home Secretary
may in her discretion grant naturalisation.
- The Home Secretary then has
interpretive discretion, e.g. in issuing guidance on what on earth "good character" means.
- The Home Secretary additionally has a number of
specific discretionary powers allowing her to waive (i.e. disregard) certain of the statutory conditions, such as the requirement that the applicant be settled for at least 12 months. This specific discretion comes in two types: formal and actual.
--
Actual discretion means the caseworker must come to a value judgment on the facts as to whether it is warranted to exercise a discretion, e.g. does that person have excess absences but his life is firmly established in the UK? It is in relation to actual, specific discretion that the (inaccurate) expression "naturalisation by discretion" is often used.
--
Formal discretion by contrast means that the Home Secretary has "crystallised" discretion into a fairly inflexible policy. The 10-day rule is one of those. The applicant is not relying on the caseworker making a value judgment - Home Office policy is as a matter of formality or
routine to waive the 10 days, and the NCS is aware of this Home Office policy.
