Discretion on Being in UK at Start of Qualif. Period

[freddiekeller]

Dear all,

Quick question: I have just read about this requirement and this applies to me 100%, I was in the middle of a 3-week holiday 5 years prior to my application.

Does this mean I will most likely be rejected? If I'm rejected on this basis will I have to pay another approx. £1350 to re-apply?

[freddiekeller]

Incidentally: am I mistaken in my observation that being rejected on this basis is ludicrous since in the application form you must state your travel history, which should allow their system to remind you of this requirement automatically?

[Zerubbabel]

The form is to enter your data. It doesn't make recommendations.

If you were away 5 years before you submitted your application, there are 2 options:

- They refuse and take the money. You will need to submit a new application and pay the fees again.

- They contact you and assist you in changing the date of your application so you don't lose your money.

It depends if they want to be nice or not.

[freddiekeller]

Many thanks for the quick reply, I much appreciate your advice

[freddiekeller]

Dear all,

I recently found out that my application sent on 03/04/2020 is a potential candidate for refusal since I was on holiday from 20/03/2015 to 08/04/2020.

I have been reading this forum and I have found out that, if the candidate satisfies this requirement within a 2-month window either side of the application date, discretion might be exercised allowing the applicant to re-submit the application at a later date by sending a letter.

I have two questions:

(1) I have lived in the UK since 2013, having obtained ILR via Settled Status in January 2019. Can I explain in a cover letter that I would like to apply using another 5-year period in the UK, e.g. 1 Feb 2015 to 1 Feb 2020?

(2) My biometrics have not been taken and will not be taken before centres re-open. In order for my biometrics to be taken, my application to be processed taking into account the current backlog at the HO, and potentially be asked to re-submit my application, more than two months will pass. Moreover, I am self-isolating in Switzerland and I believe that international travel as soon as centres reopen will not be warranted for this sole purpose, since the COVID-19 situation is likely to be ongoing and all non-strictly essential travel will be advised against. Given that exercising discretion to allow me to re-submit my application would likely require 3-5 months, rather than 2, do you have any expectation as to how likely it will be that discretion might be exercised in this case (assuming an otherwise near-immaculate application)?

Thank you all for your consideration,

Fred

[freddiekeller]

To add to (1), do you think it would be worth writing a letter asking for my application to be re-instated at a suitable date (e.g. the date of the letter), and upload this letter with the rest of the evidence?

[Zerubbabel]

If you applied already, you have to wait and see what happens.

Technically, they can't exercise discretion and you must be in the UK at the beginning of the qualifying period relied upon. However, they sometimes contact the applicant and offer the option to sign a document to change the qualifying period start date.

Sometimes they don't do it. They just refuse and take the money

[Djsuccess]

If you applied already, you have to wait and see what happens.

Technically, they can't exercise discretion and you must be in the UK at the beginning of the qualifying period relied upon. However, they sometimes contact the applicant and offer the option to sign a document to change the qualifying period start date.

Sometimes they don't do it. They just refuse and take the money

@Freddikeller, you can write a cover letter explaining that you had submitted your application when you didn't meet the said requirement and the ask that you you will like to redeclare your application date as ..... You can scan the letter and upload to your UKVCAS account before your biometrics appointment. I think that's all you can do now.
And just to make it clearer. it is not the qualifying period start date that is changed but the application date. When applicants are contacted, they are told to redeclare their application dates. Once the application date is changed, the 5 year qualifying period is calculated with the new application date.
However, as we have seen in a recent case, the HM might not ask for application redeclaration. So I think the OP can try using a cover letter to declare the application. Not so much of any other option

[freddiekeller]

Thank you very much for your messages. I am pretty convinced that I will upload a covering letter requesting the reinstatement of my application and let the forum know of the outcome of this approach.

Just to add to my second question, the guidance clearly says that discretion is to be exercised only when the applicant misses the requirement to be in the UK exactly 5 years prior by +/- 2 months, which applies to me. As I understand it, this means the applicant might be allowed to reinstate the application at a suitable date within 2 months of application. However, my application could most likely only be processed & reinstated in about 3-5 months due to COVID-related reasons. Do you also think it is unlikely they will allow me to reinstate my application at some suitable date in 3-5 months?

[Zerubbabel]

it is not the qualifying period start date that is changed but the application date

Both are changed. If you change the application date forward, this will also move the forward the beginning of the qualifying period.

I find it shame they didn't add a 3 lines of code to the online form to refuse submission if the person wasn't there 5 years ago.

[secret.simon]

Please don't spread your queries across multiple threads. I had responded to your query on the same matter in another thread and merged your posts in that thread into this one. Please keep all further posts on this topic in this thread.

(1) I have lived in the UK since 2013, having obtained ILR via Settled Status in January 2019. Can I explain in a cover letter that I would like to apply using another 5-year period in the UK, e.g. 1 Feb 2015 to 1 Feb 2020?

To add to (1), do you think it would be worth writing a letter asking for my application to be re-instated at a suitable date (e.g. the date of the letter), and upload this letter with the rest of the evidence?

No. You don't get to choose the period.

The law specifically states that the period is the five year period ending on the date of application. To change the five year period, you need to submit the application on a different date.

See Section 1(2)(a) of Schedule 1 of the British Nationality Act 1981.

just to make it clearer. it is not the qualifying period start date that is changed but the application date. When applicants are contacted, they are told to redeclare their application dates. Once the application date is changed, the 5 year qualifying period is calculated with the new application date.

Correct.

[freddiekeller]

I am guessing nobody has any insights to share regarding question (2), i.e. whether discretion might still be likely to be exercises allowing me to reinstate my application more than 2 months after my application date, as this won’t happen before due to COVID-related reasons?

I am sorry if I changed threads when I should not have. I thought these questions were different to the ones I asked in a separate thread. To be specific, I thought the questions I asked here went into much more detail about a side-question I asked in another thread, and thus warranted a thread of their own. At any rate, I will stick to this thread now, if this is what’s deemed best by moderators

[secret.simon]

I am guessing nobody has any insights to share regarding question (2), i.e. whether discretion might still be likely to be exercises allowing me to reinstate my application more than 2 months after my application date, as this won’t happen before due to COVID-related reasons?

That question is a known unknown, to misquote Donald Rumsfeld.

Unlike in immigration cases, the right of the applicants to reside in the UK is not negatively impacted in case a naturalisation application is negatively decided. The applicants would have to reapply when the conditions are met. So I would work on the assumption that the 2 month window is retained.

[freddiekeller]

Understood, thank you for sharing your take on it