Naturalisation: Any flexibility on 90 day rule?

[Unwanted]

Hi

I got my ILR today! Many thanks to this board and John in particular.

I also subsequently got a call from work asking me to fly out to India for 4 months for work.

I am aware that you should not have been out of the country for more than 90 days in the 12 months preceding a naturalisation application.

If the absence is work related, is there any leeway to this 90 day rule? If not, the alternative is presumably to wait an extra month before applying for naturalisation.

Thanks!

[lemess]

Hi

I got my ILR today! Many thanks to this board and John in particular.

I also subsequently got a call from work asking me to fly out to India for 4 months for work.

I am aware that you should not have been out of the country for more than 90 days in the 12 months preceding a naturalisation application.

If the absence is work related, is there any leeway to this 90 day rule? If not, the alternative is presumably to wait an extra month before applying for naturalisation.

Thanks!

There is indeed discretion with regard to the 90 day rule but you'd have to make a case for it. An additional 30 days should normally be OK but I suspect the better and most straightforward strategy is simply to wait a month before applying. That way your application would be straightforward and need no discretion from the caseworker and probably end up being processed very quickly . In the other case they'd have to put it in the "needs judgement call" category and it will probably involve a superior to make a decision on whether to allow it or not. By waiting 30 days you may still end up with a shorter total time to naturalisation if you know what I mean.

[Unwanted]

Thanks Lemess. Makes a lot of sense.

I also just read the below in "Guide AN (NEW)" from the IND website and it will hopefully be helpful to others.

Excess absences in the final year are considered in the following way

Total not exceeding 100 days - we normally disregard

Total absences of more than 100 days but less than 180 days,
where the residence requirements over the full 5 (3) year
qualifying period are met - we normally consider disregarding if
applicants have demonstrated links with the UK through presence
of family, and established home and a substantial part of their
estate.

Total absences of more than 100 days but less than 180 days,
where the residence requirements over the full 5 (3) year
qualifying period are not met - we normally consider disregarding
only if applicants have demonstrated link with the UK through
presence of family, and established home and a substantial part of
their estate and the absence is justified by Crown service or by
compelling occupational or compassionate reasons taking account
of the criteria shown above for disregarding total absences over
the 5 (3) year residential qualifying period.

Total absences exceeding 180 days where the residence
requirements over the full 5 (3) year residential qualifying period
are met we would consider disregarding only if applicants have
demonstrated links with the UK through presence of family, and
established home and a substantial part of their estate and the
absence is justified by Crown service or by compelling
occupational or compassionate reasons taking account of the
criteria shown above for disregarding total absences over the 5 (3)
year residential qualifying period.

Total absences exceeding 180 days where the residence
requirements over the full 5 (3) year residential qualifying period
are not met, we would consider disregarding only in the most
exceptional circumstances.

[John]

"Unwanted", I was just about to post that wording!

So in the five year period up to when you will be applying for naturalisation, what is your estimated day count going to look like? Will you be anywhere close to 450 days outside the UK?

[lemess]

Also bear in mind that there is one thing that there is absolutely no discretion with :
You HAVE to have been physically in the UK on the date exactly 5 years before the date your application is received by the Home Office.

If you were not , your application will not be processed.

You need to bear this in mind while deciding on an application date.

[Unwanted]

John: I'll be well within 450 days; probably around 250 in total if I end up spending 4 months away this year.

lemess: Thanks for the heads up. Sounds like a nutty rule but hey. I spent most of March and April 2002 overseas so that's definitely a point to consider.

Cheers

[John]

Goods news that you will have a count of only 250 days in 5 years.

I spent most of March and April 2002 overseas

So if you apply five years after you got back in April 2002 ... late April 2007 or even in May 2007 .... your day count might be even less!

[ppron747]

....Sounds like a nutty rule but hey.....

Is it that nutty? If you accept that five years is a reasonable amount of time to expect someone to live in UK before qualifying to be naturalised, and that 3 months a year is a reasonable amount of time that someone resident in the UK could be expected to spend outside the country without casting shadows over their commitment to the place, then how do you express that as an easily administerable rule, except by having a start date?

If there wasn't a start date, then what would stop people from taking all their "permitted absences" before they'd even got here, and then be in a position to qualify for naturalisation in 3.75 years instead of 5..?

Judging by some of the posts we've seen lately, with people looking for the door marked "Exit" while they're still waiting for their naturalisation application to be approved, my own view is that it's a pretty reasonable rule!
But that might just be me, of course

[JAJ]

....Sounds like a nutty rule but hey.....

Is it that nutty? If you accept that five years is a reasonable amount of time to expect someone to live in UK before qualifying to be naturalised, and that 3 months a year is a reasonable amount of time that someone resident in the UK could be expected to spend outside the country without casting shadows over their commitment to the place, then how do you express that as an easily administerable rule, except by having a start date?

If there wasn't a start date, then what would stop people from taking all their "permitted absences" before they'd even got here, and then be in a position to qualify for naturalisation in 3.75 years instead of 5..?

I would agree it makes things unnecessarily complex.

What Australia does is ask for a total of 730 days (2 years) in Australia as a permanent resident in the 5 years preceding the application, including 365 days (1 year) in the 12 months preceding application. The 730 days will increase to 1095 days (3 years) sometime during 2006.

Canada has a similar basis of calculation - they look for 3 years (1095 days) in the 4 years preceding your application for citizenship.

Neither country has a rule about where exactly you were x number of years previously.

The problem as I can see it is that the residence requirements of the British Nationality Act are focused on time *outside* the UK, rather than expressed in terms of total number of days *inside* the UK.

450 days (outside the UK) over 5 years represents approximately 25% of the time, so the 5 year residence requirement could just as easily be re-expressed as a total 5 years (1825 days) in the 7 years preceding the application, with no rule about where exactly one was 5 years previously. No loss of integrity that I can see but an end to the complications caused by the fact someone might have been on holiday in France 5 years previously.

That would however need a change to the Act, so it's very unlikely to happen anytime soon even if the Home Office were to think it's a good idea.

[JAJ]

There is indeed discretion with regard to the 90 day rule but you'd have to make a case for it. An additional 30 days should normally be OK but I suspect the better and most straightforward strategy is simply to wait a month before applying.

Maybe my calculation is incorrect, but leaving aside discretion for excess absences, it seems to me that an absence of 4 months would reset the naturalisation clock by a whole year, not one month.

That way your application would be straightforward and need no discretion from the caseworker and probably end up being processed very quickly . In the other case they'd have to put it in the "needs judgement call" category and it will probably involve a superior to make a decision on whether to allow it or not. By waiting 30 days you may still end up with a shorter total time to naturalisation if you know what I mean.

Levels of decision making authority are included in the Nationality Instructions.

In this particular case, the original poster has got his ILR so he's got more leverage with his employer to negotiate - if he wants naturalisation as soon as possible might be more advisable to wait until being sworn in as a British citizen before spending this amount of time outside the UK.

[John]

Maybe my calculation is incorrect, but leaving aside discretion for excess absences, it seems to me that an absence of 4 months would reset the naturalisation clock by a whole year, not one month.

I can't see that at all .... can you explain? Mathematically! A couple of worked examples?

[ppron747]

Perhaps JAJ is thinking that you have to be physically in the UK on the first day of the final year, which is not the case... If it was, and you had a four month absence in that year, then the final year would have to start again after you got back from your absence abroad. That's the only way I can make it work, anyway...

[JAJ]

Maybe my calculation is incorrect, but leaving aside discretion for excess absences, it seems to me that an absence of 4 months would reset the naturalisation clock by a whole year, not one month.

I can't see that at all .... can you explain? Mathematically! A couple of worked examples?

For simplicity, assume the person has had ILR for many years and has lived in the UK a long time (eg 15 years residence, 10 years with ILR, no absences from the UK).

Then on 1 January 2006 he leaves the UK for 4 months, and then returns to the UK. No further absences.

On his return to the UK (1 May 2006), he falls foul of the "90 day rule" as he has 120 days outside the UK in the previous 12 months. He will continue to not comply with this rule right through 2006.

By my calculation, such a person will not be eligible to apply for naturalisation until 1 February 2007 (9 months after arriving back in the UK).

Hence the 4 months outside the UK doesn't just put back eligibility by 1 month, it's necessary to wait an additional 9 months for the extra days to drop out of the calculation.

Is that correct or am I still missing something obvious?

[ppron747]

Well, you seem to have moved the goalposts a bit! You're now saying that it delays the application by nine months, whereas I understood you to say a year in your earlier post....

Surely that's the worst case, though - having a single four month absence? I was certainly thinking in terms of a number of short trips, adding up to a total of four months over a 12 month period. Then, you'd have to be pretty unlucky not to be able to get the first 30 days pushed back into the penultimate year within a much shorter time than 9 months.

Can we call it a draw?

[Unwanted]

Maybe my calculation is incorrect, but leaving aside discretion for excess absences, it seems to me that an absence of 4 months would reset the naturalisation clock by a whole year, not one month.

I can't see that at all .... can you explain? Mathematically! A couple of worked examples?

For simplicity, assume the person has had ILR for many years and has lived in the UK a long time (eg 15 years residence, 10 years with ILR, no absences from the UK).

Then on 1 January 2006 he leaves the UK for 4 months, and then returns to the UK. No further absences.

On his return to the UK (1 May 2006), he falls foul of the "90 day rule" as he has 120 days outside the UK in the previous 12 months. He will continue to not comply with this rule right through 2006.

By my calculation, such a person will not be eligible to apply for naturalisation until 1 February 2007 (9 months after arriving back in the UK).

Hence the 4 months outside the UK doesn't just put back eligibility by 1 month, it's necessary to wait an additional 9 months for the extra days to drop out of the calculation.

Is that correct or am I still missing something obvious?

The key thing here seems to be the naturalisation eligibility date.

The above is correct because the person was eligible to apply for naturalisation before going on the 4 month absence.

However, using my case as an example, I am not eligible for naturalisation until 1st Feb 2007. Therefore, if I am overseas for 4 months from 15th Feb to 15th June 2006 with no absences thereafter, my naturalisaion date moves to around 16 March 2007 in order to have less than 90 days in the preceding 12 months. Effectively an extra wait of 6 weeks.

A draw seems fair