Does a Mandatory Year Abroad Qualify for Discretion

[pterodactylus]

Hello! I know that there are similar topics, but I couldn't find a definitive answer.

I am an EU citizen, and I spent about 330 days in China as part of my mandatory year abroad during my BA. Does the year abroad qualify for discretion (up to 900 days). In my opinion, it should as it is 'An unavoidable consequence of the nature of your work'. Furthermore, when applying for settled status, one is allowed to be absent for 'one period of up to 12 months for an important reason', and 'study' is explicitly mentioned. I don't see why the same would not apply to the citizenship eligibility rules.

Thank you!

[secret.simon]

Furthermore, when applying for settled status, one is allowed to be absent for 'one period of up to 12 months for an important reason', and 'study' is explicitly mentioned. I don't see why the same would not apply to the citizenship eligibility rules.

Because immigration processes and laws end at ILR/PR/Settled Status. Naturalisation and nationality are under completely different laws and regulations, which do not share all the same relaxations as immigration law.

For instance, there is a mandatory requirement for the applicant to have been physically present in the UK exactly five years before the date of application. That requirement is regardless of any absence permitted by immigration law and is a separate requirement of nationality law.

Also, in theory, an EEA citizen can gain Settled Status (or in the past, PR) with an absolute minimum residence of only 2 years in the UK strategically spaced (with six months of each year out of the UK and one year out for a special reason). But the requirements for naturalisation are much stricter. So, do not equate the two processes.

Within the UK, you will be able to exercise almost all the rights of a British citizen on ILR/PR/Settled Status. So, to exercise discretion, you will have to convince the caseworker how British citizenship would be more beneficial for you within the UK than ILR/PR/Settled Status.

The exercise of discretion is also regulated. If one hands out discretion willy-nilly, that makes a mockery of the law and renders it otiose.

(Page 16)
Where the applicant has absences of between 480-900 for applications under section 6(1) of the British Nationality Act 1981, or 300-540 for applications under section 6(2) and otherwise meets the requirements you must only consider exercising discretion where the applicant has established their home, employment, family and finances in the UK, and one or more of the following applies:

• at least 2 years residence (for applications under section 6(1)), or 1 year (for applications under section 6(2)), without substantial absences immediately prior to the beginning of the qualifying period. If the period of absence is greater than 730 days (for section 6(1)) or 450 days (for section 6(2)) the period of residence must be at least 3 or 2 years respectively

• the excess absences are the result of:
o postings abroad in Crown service under the UK government or in service
designated under section 2(3) of the British Nationality act 1981.
o accompanying a British citizen spouse or civil partner on an appointment overseas
• the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a multinational company based in the UK with frequent travel abroad
• exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement
• the excess absences were because the applicant was unable to return to the UK because of global pandemic

Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level

Your completion of a study course abroad is unlikely to come under the "unavoidable consequence of the nature of a career" option, because the idea of exercising discretion in that circumstance is that otherwise, in the absence of such discretion being exercised, the applicant would never be able to naturalise unless they give up their career.

In your case, your course is over and once you are back in the UK, you can build up the residence period again. So the caseworker is unlikely to see your application for discretion in the same light.

[pterodactylus]

Thank you for the swift reply.

Yes, I am well aware of the requirement that you mentioned (i.e. being physically present in the UK exactly five years before the date of application).

Do you know anyone in my position who has applied for naturalisation (and the respective outcome of their application)?

Also, I acknowledge that this might sound silly, but how do caseworkers verify how many days one has spent out of the UK? Obviously, I would never try to provide false information (and how could I even hide almost a whole year abroad ), but if they are able to check that, wouldn't we be able to do it as well without having to look for past flight tickets, etc.? I know, it sounds ridiculous, if it were that easy, then people wouldn't be counting the days they were abroad, so I guess it doesn't work this way, but do you know how it actually works?

Thank you!

[CR001]

Ukvi check what you have declared in your application form as absence and the advance passenger list/information they get. You also have to upload your passport pages that contain stamps.

As an EU citizen, you are also required to submit evidence and proof of residence in the UK, ie earnings etc, for the whole 5 years.

[secret.simon]

With non-EEA citizens, their passport stamps.

With EEA citizens, likely the Advanced Passenger Information data that you file when you leave and reenter the UK via airlines/ferries/Eurostar? But the latter is an educated guess.

EDIT: Overtaken by CR001's short and sweet response

Do you know anyone in my position who has applied for naturalisation (and the respective outcome of their application)?

Given that you lose the fee of ~£1200 if your application fails (you will be refunded the £80 for a citizenship ceremony though, if that is any consolation), most applicants who do not meet the exacting requirements tend not to apply (unless they have that amount of money lying around that they can afford to lose).

[pterodactylus]

I see. Thank you, both.

I am an EU citizen, so my passport has never been stamped in Europe, and I have never filed anything when entering/leaving the UK. However, I guess CR001's answer is correct—obviously, UKVI should have access to this kind of data (i.e. when a person has entered/left the country).

I didn't know, however, that one had to submit 'evidence and proof of residence in the UK', especially given that the UKVI can (and will, I assume) check whether the periods during which I have stated that I have been in the UK, are indeed correct (not to mention that having settled status or similar is already a prerequisite). It shouldn't really matter, though, as I could always provide my tenancy agreements.

Thank you!

[secret.simon]

I have never filed anything when entering/leaving the UK.

You almost certainly filed API with the airlines/ferries/Eurostar, even when travelling within the EU. That information would be shared by the airlines/ferries/Eurostar with the border agencies where the journey started and ended, which in the UK would be the UKV&I.

I suggest reading the caseworker guidance I linked to above and the Form AN guidance and booklet, to get a fuller, rounder understanding of the requirements for naturalisation, which are significantly different from those for Settled Status.

As an aside, have you done the English language test (not required if you have a UK degree) and the LITUK test?

[pterodactylus]

I have a UK degree, but I haven't done the LITUK test.

Just for the sake of clarity: I am not currently planning to apply for citizenship (as I am not yet eligible), but I would like to plan my absences in advance (in order to limit my time spent outside of the UK) in case I decide to apply next year. In fact, I have yet to apply for settled status (I have pre-settled status), but I will do so in September/October.

I know, I am probably thinking too far ahead in time, but obtaining a British citizenship is something that I hadn't even considered prior to Brexit, so I would like to see what my options are.

Regarding the API and relevant information being shared by the airlines with the border agencies, I would assume that you are most likely correct. Perhaps I didn't express myself clearly; let me reiterate. I have never explicitly filed anything when entering/leaving the UK (unlike when entering/leaving China or Japan, for instance), but this doesn't mean that the airlines haven't shared anything with the border agencies, of course.

[brexitmeansbrexit]

Hi @pterodactylus

I am in a similar situation as you described. I went abroad for a long semester abroad as a part of my uni degree a few years ago (and it was a compulsory part of the degree hence unavoidable). I am currently waiting for my naturalisation application to be considered. I obtained a letter from my university confirming this and stating that it was a mandatory part of the course.

My total absences including this study abroad time added up to between the 450-480 bracket of QP (within a discretion). I asked for exercising the discretion (as within the 480 days in the 5-year period there is more flexibility than above 480 days).

FYI airlines have a duty to report PNR booking/APIS information to Home Office so they do collect a substantial amount of information about air travel (booking ref, flights details, etc).


Just a few practical tips I can give from my experience:

• You can request a SAR request from Home Office to obtain your 5-year travel history to/from the UK, this will include all the flights and airline bookings from and to the UK (ask for BASIC that is sufficient) https://www.gov.uk/government/publicati ... mmigration

• I would ask your university/school to provide you with a formal letter (stamped, signed) confirming this study abroad period with dates and that it was part of your degree

• Try to limit your future travels within the last qualifying year right before you are ready to be submitting your application - there is less discretion if you have absences above 90 in your last qualifying year

• As you will be relying on Settled Status, as an EU citizen you will be asked to prove that your stay here (from the time you came to the UK, not just 5-year QP) was indeed lawful (within the EEA Treaty rules- e.g. as a full-time student with CSI, employed, self-employed etc.) - there is a preferred list of what they like to see - e.g. University student letters, CSI insurance, HMRC letters, P60s, Employment letters etc.

• As it seems you were a student you might want to double-check if you are able to prove that you have had CSI (e.g. your non-UK issued EHIC covering your time spent as a student or private insurance from your EU member state or EU state healthcare entitlement letter during your time spent as a student unless you were also working here)

• You still need to supply the documentary evidence of your residence covering your QP in addition to your Settled Status as that is merely a prerequisite not evidence of residence

[pterodactylus]

@brexitmeansbrexit, thank you very much!

Your post helps a lot, but it also raises several questions at the same time...

1. My total absences including the study abroad would add up to way over 480 days (but still within the allowed 900). I am not sure if this changes much, if anything, though.

2. The SAR request is a wonderful suggestion; thank you!

3. The exact period of my year abroad is mentioned on my degree transcript (issued by a UK university), so this should suffice.

4. I came to the UK in 2016 as a student. I finished my degree last year, I am currently doing a master's degree, and I am going to do a PhD. I honestly had never heard of CSI before yesterday, and I am still not sure what it is (yes, I read this: https://www.freemovement.org.uk/compreh ... -needs-it/). I am entitled to healthcare in my country (Bulgaria), and it is mentioned that 'The EU Rights Clinic says in a very helpful recent post that “another way to prove comprehensive sickness insurance includes past coverage under your home country’s social security system”. This is a method that can be used in particular by citizens of Bulgaria, Romania and the Netherlands if they were issued certain documents giving them the right to receive healthcare in the UK at the expense of their home country.' Personally, I have no idea whether I have the right to receive healthcare in the UK at the expense of my home country—obviously, I have the right to access NHS services, and I am registered with a British GP, but it seems that this does not count as CSI? I previously owned a European Health Insurance Card (EHIC), but currently I don't have one, and I don't think it would be of much use after Brexit... Honestly, I am completely lost as far as CSI is concerned. Every year I go to the NRA (National Revenue Agency) and provide proof that I am a student, so I am entitled to healthcare (I only had to pay for the short period between finishing my BA and starting my master's). I guess that I could use this as it's a form of 'EU state healthcare entitlement'? I found a thread about that here: eea-route-applications/csi-application- ... 67596.html, but I am not sure what happened with this person...

[pterodactylus]

Sorry for posting twice in a row.

Well, it seems that the S041 form should do the job: third party solicitor weblink removed by moderator

Page 17 of the AN guide: 'For example, if you needed to have comprehensive sickness insurance (CSI) to be in the UK in line with EEA regulations (for example as a student or self-sufficient
person, or their family member), you must confirm on the form whether or not you had CSI during that time. If you did have CSI, please enclose a copy of your policy with your application when applying.'

I'd also like to make a small correction to my previous post: as a citizen of an EU country, I have (had?) the right to receive healthcare in the UK at the expense of my home country (I just hadn't thought of it that way).

Now, back to the main issue. Consider this (from the link I provided):

'3. Do I need CSI if I have been granted pre-settled or settled status?
No. This is not a requirement for European nationals and their family and extended family members who have been granted pre-settled or settled status. However, this does not extinguish the requirement for Comprehensive Sickness Insurance for periods before the grant of pre-settled or settled status for students or self-sufficient persons (see above).'

In other words, it seems that I will only need to provide proof of CSI for the period prior to obtaining pre-settled status (i.e. 2016-2020), and S041 should be enough.

[secret.simon]

In other words, it seems that I will only need to provide proof of CSI for the period prior to obtaining pre-settled status (i.e. 2016-2020), and S041 should be enough.

You can't have acquired pre-settled status in 2016, because it did not exist then. Did you mean 2019?

[pterodactylus]

@secret.simon,

Sorry for the confusion. Yes, you are right, I can't have acquired pre-settled status in 2016; I did so in February 2020. '(i.e. 2016-2020)' was referring to 'the period prior to obtaining pre-settled status', which, in my case, is late September/October 2016-early February 2020).

Considering that you and CR001 are rather confident that a mandatory year abroad as part of my degree is not worthy of discretion, I guess I shouldn't apply for citizenship in October 2022, but rather in October 2024... Do you think that consulting a solicitor is necessary or would I be wasting my money?

[pterodactylus]

Sorry for the bump; doesn't anyone have anything to add?

@secret.simon, you have been very helpful, do you have any other advice? Thank you!