Presence in the UK five years before nationalization

[tonytee]

There has been a lot written about satisfying the 5-yaer residency rule by being present in the UK five years before nationalization even if it was on a visitor's visa. Is this correct? Surely if one came to the UK on a visit one year before entry on a scheme like HSMP, one will not be able to meet the 5-year rule even if one was physically present on the day 5 years before.

In my case i visited the UK every year on vacation since 1999. i came in on HSMP in February 06 and got ILR (through JR) in Feb 2010. Is it possible to apply for nationalization before February 2011.

Tony

[wunder]

No, you can only apply in February 2011.

The requirement is to be a UK resident for at least 5 years prior to the day of application (including the full day exactly 5 years ago). People on visitor visas are not residents.

[MPH80]

No, you can only apply in February 2011.

The requirement is to be a UK resident for at least 5 years prior to the day of application (including the full day exactly 5 years ago). People on visitor visas are not residents.

Actually - that's not true:

http://www.opsi.gov.uk/RevisedStatutes/ ... en_10#sch1

that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450;

So - you only have to be IN the UK at the beginning of the residency period.

To help confirm this:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

2.3 Physical presence here is normally sufficient for the purpose of the
Act. The applicant does not have to have been ordinarily resident or domiciled here. Normally, an applicant is to be regarded as present in the United Kingdom unless physically absent; but in certain circumstances, the Act requires periods of physical presence to be treated as absences (see paragraph 9 below).

My wife successfully applied for her citizenship using this rule and using the fact she was in the country, on a tourist visa for a period of just 6 days as her qualifying date.

HOWEVER, in the case of the OP, there is an additional requirement to have held ILR for one year before the naturalisation can take place.

(from the BNA 1981 again):

(c)that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom;

So - for the OP - you can only apply in Feb 2011.

[wunder]

Actually - that's not true

In his case it is true - it is exactly the same situation as I'm experiencing myself: 4 years of being a resident (not a visitor) for ILR + 12 months after getting ILR.

[MPH80]

Actually - that's not true

In his case it is true - it is exactly the same situation as I'm experiencing myself: 4 years of being a resident (not a visitor) for ILR + 12 months after getting ILR.

While the situation he is in is forcing him to be a resident for five years, the statement:

The requirement is to be a UK resident for at least 5 years prior to the day of application (including the full day exactly 5 years ago)

is not true - if you can get ILR prior to the 4 year marker then you can do it in less.

The requirement is not to be a UK resident, it's to be present in the UK five years prior to your application.

We shouldn't conflate the two issues - the time sensitive requirements for citizenship are:

1) Be in the country 5 (or 3) years prior to application
2) Have held your ILR for a year (unless you're a spouse of a BC)
3) Not have breached the number of days out rules

For example - you might get ILR as a spouse (after 2 years) and then divorce. You could still obtain citizenship a year later (after 3) if you were here as a visitor 5 years earlier.

Having said all that - *if* they implement it - then the new rules (in the B&I Act 2009) change these requirements and will require that the time you claim for your residency will have been spent on appropriate visa categories.

And just to clarify for the OP - in your situation you will have to wait until Feb 2011 because of the requirement to have had your ILR for one year.

[geriatrix]

been resident in the UK for at least five years (this is known as the residential qualifying period);

Four years for people covered by HSMP JR, and

have been resident in the United Kingdom for at least three years (this is known as the residential qualifying period)

you might get ILR as a spouse (after 2 years) and then divorce. You could still obtain citizenship a year later (after 3) if you were here as a visitor 5 years earlier.

If the couple are legally divorced (decree absolute), then an applicant cannot claim eligibility to naturalisation in 3 years time. The applicant must complete the 5 year residency period to be eligible for naturalisation
See also 18.2.2 Naturalisation under section 6 (2).


regards

[geriatrix]

Is it possible to apply for nationalization before February 2011.

No.


regards

[wunder]

We shouldn't conflate the two issues

True. Sorry!

[MPH80]

I know what the website says ...

been resident in the UK for at least five years (this is known as the residential qualifying period);

Four years for people covered by HSMP JR, and

have been resident in the United Kingdom for at least three years (this is known as the residential qualifying period)

However, the law says something different - see my post above. Particularly about the requirements of the residential qualifying period.

I will happily prove that my wife was granted citizenship in May this year based on 2 years residence but having been present in the UK on a tourist visa 3 years earlier.

you might get ILR as a spouse (after 2 years) and then divorce. You could still obtain citizenship a year later (after 3) if you were here as a visitor 5 years earlier.

If the couple are legally divorced (decree absolute), then an applicant cannot claim eligibility to naturalisation in 3 years time. The applicant must complete the 5 year residency period to be eligible for naturalisation
See also 18.2.2 Naturalisation under section 6 (2).

The entire point being that when you read what you have to do to meet the residence requirements - you find that you don't actually have to be resident for the period - merely be legally in the country at the start and not breach the days out of country rules (which might be tough!)

I'm going to finish all this off by saying that I started believing the same thing - that you HAD to be resident - John pointed out this wasn't true and I've done my own research since that agrees with him.

You can see my original conversation with him here: My original posts on the topic

[geriatrix]

My two cents -

If one interprets "resident in the UK" to mean as being "ordinarily resident" or "domiciled" or "resident in a category leading to settlement" in the UK, then one is bound to misinterpret the rule. The residential qualifying period for naturalisation includes any "lawful period of stay" in the UK e.g. - a stay as a visitor. And it is on that basis that your spouse qualified for naturalisation even though he/she was perhaps "ordinarily resident" or "domiciled" in the UK as your spouse only for two years (and not 3). Even a visitor is "resident in the UK" while in UK during the validity of his visa and that is how your spouse qualified for naturalisation at the time he/she did.

Therefore, to state the residential qualifying period requirement is not true isn't accurate and perhaps as a result of misinterpreting the requirement.

On the second point, to state that an applicant when legally divorced from a British citizen may still qualify for naturalisation after 3 years of being "resident" in the UK is factually wrong as naturalisation under section 6 (2) only applies when the marriage is not void.


regards

[MPH80]

Therefore, to state the residential qualifying period requirement is not true isn't accurate and perhaps as a result of misinterpreting the requirement.

Ok - yes - I'd accept that interpretation of the phrasing.

I think most reasonable people would take resident (as our lady at NCS, and wunder, did) to mean on a settlement visa (either temporary or indefinate) hence my defence of the requirement.

Anyway - let's put this to bed. We're both essentially saying the same thing and discussing semantics now.

M.

[tonytee]

A follow up question on the reference date for the 5 year presence. For an application through the NCS, which date is considered as the date of receipt of application. Is it when the application is submitted to the NCS. or when it is physically received by the HO. If it is the date of receipt by HO, how can one correctly estimate the no of days beween submission at the NCS and receipt by HO. This information is relevant if one left the UK shorly after the date of first entry in the UK under the relevant settlement category.

Tonytee

[vinny]

when it is physically received by the HO.

6.3.4.

[tonytee]

Thank you. For the other part of the query, is there any indicative time frame for the period between submission at NCS and receipt by HO.

Regards.

Tonytee

[wunder]

Thank you. For the other part of the query, is there any indicative time frame for the period between submission at NCS and receipt by HO.

Normally it is on the next day.