Discretion to waive the "free from immigration restrictions for the past 12 months" rule for naturalisation

[anonvtic]

I was reading the official guidance here: https://www.gov.uk/government/publicati ... ration-law where it states:

Applicants under section 6(1) who have not been free from immigration time restrictions for 12 months

There is also discretion to waive this requirement in certain circumstances.

Discretion to disregard immigration time restrictions in the 12 months prior to application can be exercised if one of more of the following is met:

• the applicant had less than 12 months free from time restrictions when they applied, but meets the requirement by the time you consider the application, and all the other requirements are met

• the applicant had been put on conditions when returning to the UK, but has since established that they were a returning resident or exempt from control

• the period of limited leave was less than 10 days at the beginning of the 12- month period

• the period of limited leave was between 10 and 90 days at the beginning of the 12-month period, and the applicant:

• meets all the other requirements

• has strong links with the UK through having established their home, property and family here

• the period of limited leave was more than 90 days at the beginning of the 12- month period, and:

• the applicant meets all the other requirements

• the applicant has strong links with the UK through having established their home, property and family here

• there are compelling business or compassionate reasons to justify granting now

• the period of limited leave was more than 10 days at the beginning of the 12- month period, and:

• the applicant does not meet all the other requirements

• has strong links with the UK through having established their home, property and family here

• there are compelling business or compassionate reasons to justify granting now

• there are exceptionally compelling circumstances.

• the applicant made an application for ILR at least 15 months before the citizenship application, and was granted following a delay which was not their fault

• an application for leave or asylum was refused in error and, if it had been granted correctly, the applicant could have applied for ILR and met the requirements on the date of application

I am wondering about the point I have highlighted above. This means that an applicant for naturalisation could apply up to 10 days early of the completion of 12 months on ILR status, and the discretion to waive the requirement (of being free from immigration restrictions in the last 12 months) will automatically be considered, right?

[CosmosS]

Interesting. It does say that discretion can be exercised if you apply up to 9 days (less than 10 days) early.

The ILR delay point is interesting and can be quite useful for some people.

But it says discretion "can" be exercised rather than "must"

The copy pasted text has lost formatting in the process so the full text can be found on the gov website (Naturalisation caseworker guidance).

[secret.simon]

The general rule about exercising discretion is that discretion is exercise to disregard only one requirement for naturalisation and that all other requirements must be met.

I would not want to apply early and risk a rejection because two requirements (by having applied ten days early and not waited those ten days) need discretion to disregard.

And given that you could be waiting months for a response, applying ten days early, with a higher risk of rejection, seems foolhardy and pointless.

it says discretion "can" be exercised rather than "must"

Discretion that must be exercised, by definition, is not discretion.