Calculation of "exactly 5 years" prior to submission of application

[kamoe]

So, my solicitor is telling me that to calculate the exact 5 years to submit the application, one needs to go back 5 years AND add one day. So if I was to submit my application today, I need to make sure I was physically in the UK on 24th of February 2017, NOT on 23rd of February 2017.

Can anyone confirm?

[kamoe]

And, can a travel day be considered a physical presence day? For example, if one travelled abroad on 24th February 2017, does 24th February 2017 counts as a day one was physically present in the UK or not? In other words, does the physical presence needs to have been sustained throughout the 24 hours of that day?

I would appreciate comments from anyone with first-hand experience of having submitted the application exactly 5 years from a travel date.

I a bit freaking out at the moment as I submitted my parters' application, having the buffer of one day. Then my solicitor tells me the above. So it turns out I submitted his application on a travel day.

[secret.simon]

That sounds correct.

The formulation in law is that the person needs to be physically present in the UK "at the start of the five year period immediatly preceding the date of application".

If you applied today, the start of the one year period immediatly preceding the date of application would have been 24th February 2021.

Therefore, using the same logic, the start of the five year period would have been 24th February 2017.

It is for simplicity's sake that we state that the person needs to have been physically present in the UK exactly five years ago. It is a simpler rule-of-thumb that approximates to the same thing.

I also suggest leaving a one week period either way, in any case.

[secret.simon]

can a travel day be considered a physical presence day?

That is a trickier question. For immigration purposes, the travel day is not considered absence from the UK. But then, not all immigration definitions apply directly to the naturalisation process. I am not sure on this point of whether this particular definition would apply automatically to naturalisation applications or not.

If the application would fail because of that issue AND that is the only fault with the application, the caseworker would likely allow your partner to redeclare the application to another date within two months of the original application date. That will of course cause a delay in the processing of the application, but not a refusal.

[kamoe]

I submitted my partner's application on January 30th 2022, judging it was a safe date, as he was in the UK on January 30th 2017. He travelled out on January 31st 2017, so I allowed a buffer of one day. Then my solicitor drops the bomb, and according that, it turns out I submitted his application exactly five years from a date the travelled abroad.

He travelled a lot for work during that period, and will continue to travel a lot now that covid restrictions have eased. It was a challenge to find the right time to submit, as there was also the risk of breaking the 90-day absence allowance in the last year prior to application. I'm not sure what alternatives I've got, probably do nothing and wait. (Since day trips abroad, or days you went abroad and came back on the same day, are not counted towards absences, I am banking on travel days counting as physical presence days).

[secret.simon]

Approach the question this way; there is discretion to disregard absences longer than 90 days in the past one year, but there is no such discretion for the five year requirement. Then plan accordingly.

If the travel is an integral part of their job (salespersons, air stewards, etc), I think the caseworker is likely to disregard the absence in the preceding one year exceding 90 days by a few more days.

[kamoe]

If the application would fail because of that issue AND that is the only fault with the application, the caseworker would likely allow your partner to redeclare the application to another date within two months of the original application date. That will of course cause a delay in the processing of the application, but not a refusal.

How sure are we of this?

And... can one withdraw a British Citizenship application and get a refund (and apply at a later date )? Is that a thing?

[secret.simon]

If the application would fail because of that issue AND that is the only fault with the application, the caseworker would likely allow your partner to redeclare the application to another date within two months of the original application date. That will of course cause a delay in the processing of the application, but not a refusal.

How sure are we of this?

Well, it is mentioned in the caseworker guidance on naturalisation (Page 14).

To identify the start of the qualifying period you use the day after the application date minus the length of the qualifying period. For example in an application under section 6(1) made on 1 March 2016, the applicant must have been legally in the UK on 2 March 2011.

Where the applicant fails to meet the requirement to be in the UK at the start of the qualifying period by 2 months or less, either side of the application date, you must consider using discretion to allow them to re-declare their application. Where discretion is being exercised you must request that the applicant re-declares their application, by using Doc Gen letter 4746.

Where they fail to meet the requirement by more than 2 months, you must normally refuse the application.
...
Where an application is re-declared, the original application date is superseded by the date on which the re-declaration is received by the Home Office. You must ensure that applicants are aware that they need to ensure that the new application date does not fall on a date that they would still not meet the qualifying period.
...

As I understand it, discretion can be used to disregard only one defect in the application form. If there is more than one defect, discretion is normally not applied (i.e. you can't request discretion to disregard more than one requirement). So, if discretion is required to request a redeclaration, all other requirements of the form must have been met.

And... can one withdraw a British Citizenship application and get a refund (and apply at a later date )? Is that a thing?

I think somebody else on the forums has tried that. I will try to find the link to that thread. But the refund can take weeks or months.

[alterhase58]

Please refer to the refunds policy:
https://assets.publishing.service.gov.u ... .0-ext.pdf

[kamoe]

Well, it is mentioned in the caseworker guidance on naturalisation (Page 14).

Thank you so much, @secret.simon.

To identify the start of the qualifying period you use the day after the application date minus the length of the qualifying period. For example in an application under section 6(1) made on 1 March 2016, the applicant must have been legally in the UK on 2 March 2011.

From the specific wording used, it sounds to me that a day when one travelled out from the UK whilst legally here, should count as a day when one was legally present. Does not say for how long in that given day one must have been present. It just says "present". So 1 second, 5 minutes, 24 hours, all should count as presence.

I think somebody else on the forums has tried that. I will try to find the link to that thread. But the refund can take weeks or months.

Thanks. I think I'll just wait and see. can't afford to submit another application without the refund first. (His application is a straightforward one, which I checked numerous times, if at all there is an issue, then there should be discretion to redeclare! And at this point I cannot cope with more twists)!

Thank you.

[secret.simon]

From the specific wording used, it sounds to me that a day when one travelled out from the UK whilst legally here, should count as a day when one was legally present. Does not say for how long in that given day one must have been present. It just says "present". So 1 second, 5 minutes, 24 hours, all should count as presence.

The analogy to that would be whether a person dressed in a tuxedo and a person dressed only in the skimpiest underwear would both be considered "dressed" for the purpose of obscenity laws.

[kamoe]

The analogy to that would be whether a person dressed in a tuxedo and a person dressed only in the skimpiest underwear would both be considered "not naked" for the purpose of obscenity laws.

Well, as long as "presence", "physically present in the UK", and " legally in the UK" can be understood as "not absent", I think we're good here. Furthermore, I believe that on the lack of a formal definition for the purposes of naturalisation, it is more than reasonable to interpret "presence" as the opposite of "absence".

It does say on page 15:

You must only count whole days' absences from the UK. You must not count the dates of departure and arrival as absences. For example, a person who left the UK on 22 September and returned on 23 September will not be classed as having been absent from the UK.

And given that one's declared absences are used to check one's requirement of the 5-year rule... I don't feel there will be issues.

I'll report back.

[mesn]

Was travelling and returned to UK on 30Dec16, Applied for Naturalization on 31Dec21. 3 applications, were approved a couple of weeks ago. Hope that helps.

[kamoe]

Was travelling and returned to UK on 30Dec16, Applied for Naturalization on 31Dec21. 3 applications, were approved a couple of weeks ago. Hope that helps.

Thanks. Well in your case there was no problem as the key date for you to prove presence was January 1st 2017 not December 30th 2016. It's application date minus five years plus one day (not minus one day).

[kamoe]

OK I freaked out and withdrew the application. I was advised by two separate immigration specialists that the presence of the day in question should be of the full 24 hours.

I suppose if it came to it, the case worker could exercise discretion and allow a redeclaration of application date... but I felt it was too risky to bank on it. Why waste a joker when you can stop the error in the first place? (Since biometrics were not yet done, that was still an option). If at all there is another mistake in the form that I didn't catch, then discretion could not be used. Better safe than sorry.

Will report back when I receive the refund, fingers crossed it's not too long of a wait.

Thanks to everyone who commented. Helped me make up my mind.

[kamoe]

Will report back when I receive the refund, fingers crossed it's not too long of a wait.

Just received the refund. Took 7 weeks. Timeline here.