Post
by asadkhan71 » Mon Oct 28, 2013 6:36 pm
9. Technical absences
9.1 Normally, all the time that applicants are physically present in the UK should be counted as residence. However, paragraph 9 of Schedule 1 to BNA 1981 provides that applicants are regarded as absent from the UK (although physically present here) at any time when they are exempt from immigration control under s.8(3) (diplomats) or s.8(4) (members of home, Commonwealth or visiting forces) of the Immigration Act 1971, as amended by s.4 of the Immigration Act 1988). The 1988 Act removed the exemption from control of locally engaged non-diplomatic members of missions (see below). Persons exempt from immigration control under s.8(2) of the Immigration Act 1971 (Consular staff and certain employees of international organisations) are not regarded as being technically absent from the United Kingdom whilst so exempt.
9.2 Treatment of technical absence for naturalisation purposes
9.2.1 There is discretion under paragraphs 2(b) and 4 of
Schedule 1 to the BNA 1981:
• to regard technical absence as residence for naturalisation
purposes; and
• to accept that an applicant can be treated as present here on the date 5(3) years before the date of application if it comes within the period of technical absence
9.2.2 Immigration Policy Directorate (Croydon) can advise on whether an applicant is, or has been exempt, from
- 25- immigration control, either as a locally engaged non- diplomatic employee of an Embassy or High Commission, a diplomat or as a member of a home, Commonwealth or visiting force, or as a member of the family and part of the household of such a person. This may be particularly important in cases where 1 August 1988 is included in the qualifying period for naturalisation, because of the changes made by the Immigration Act 1988.
9.3 Applicants exempt from immigration control under section 8(3) or (4) of the Immigration Act 1971, as amended by section 4 of the Immigration Act 1988
9.3.1 For the purposes of naturalisation such applicants can be divided into 3 categories:
a. Those who are, or have been, members of the home forces (i.e. HM Forces and were serving in the United Kingdom on the date of application);
b. Past and present members of the diplomatic staff of a mission, a Commonwealth or visiting force, whether locally engaged or otherwise;
c. Past and present locally engaged members of the non- diplomatic administrative, technical and service staff of a mission whose employment began before 1 August 1988, or were locally recruited on or after 1 August 1988 and were not at that time entitled to exemption from control but became so entitled upon re-admission following an absence abroad.
NB. Those in category c whose employment first began
- 26 - on or after 1.8.88 are not entitled to exemption from immigration control (i.e. they remain subject to control) by virtue of the 1988 Act if they do not leave the United Kingdom. They do not need to rely on paragraph 2(b) and 4 of Schedule 1 to the BNA 1981 to meet the residence requirements.
9.4 Members of HM Forces
9.4.1 Applications made by those in category 9.3.1.a should be considered in accordance with the guidance in Annex B(i).
9.5 Diplomats and Members of Diplomatic Missions
9.5.1 Section 8(3) of the Immigration Act 1971 gives total exemption from immigration control to members of a diplomatic mission (within the meaning of the Diplomatic Privileges Act 1964) - i.e. the head of a mission, members of the diplomatic staff and the administrative, technical and service staff (but see paragraph 9.5.2-9.5.3 below). Exemption is also granted to a person who belongs to the family and forms part of the household of the member. Private servants of members of a mission do not qualify for exemption.
Locally engaged staff (non-diplomats)
9.5.2 Section 8(3) was amended by the Immigration Act 1988 to ensure that, from 1 August 1988, locally engaged members of a mission in the non-diplomatic categories of administrative and technical staff and service staff, and their family, would only be entitled to exemption from control if they entered the UK:
- 27-
a. as a member of that mission; or
b. in order to take up a post offered to them before arrival.
This had been done to prevent any abuse of obtaining employment at a mission to prolong a person's stay in the United Kingdom when the person would not otherwise qualify under the Immigration Rules.
9.5.3 The position of persons recruited in the above categories prior to 1 August 1988 is not affected, and their exemption continues. After that date, missions are only able to engage locally persons in the above categories whose status allows them to take employment, or persons whose appointments are formally notified to the Protocol Department of the Foreign and Commonwealth Office under Article 10 of the Vienna Convention on Diplomatic Relations. If the Foreign and Commonwealth Office are satisfied that the persons are in bona fide employment, and entitled to privileges and immunities, employment is permitted. They are, however, subject to control, unless they subsequently re-enter the UK as an established member of the mission following an absence abroad.
9.5.4 For applicants in category 9.3.1.b, and subject to the additional considerations in paragraph 9.5.5 below, we should consider disregarding up to 730 (450) days technical absence where the applicant:
• was granted indefinite leave to remain at least 12 months before the application date; and
- 28 -
can show strong links with the United Kingdom which are wholly independent of the exempt employment (e.g. a period of residence before entering exempt employment); and
• is otherwise qualified for naturalisation