citizenship 5 year resident period

[first_sur]

Hi

Me and my wife came to UK in July 2004, Me and my wife got ILR 16 Sep 2009, as I understand now we will be eligible for citizenship after 16 Sep 2010. My question is that if I calculate the date (5 years before 16 Sep 2010) my wife was away from UK between 7 sep – 11 dec 2005.
Does that mean she is not eligible if we apply now as she was not present in UK during this period, So , we will only be able to apply after 11 dec 2010 if we want to apply jointly.
Also, if we are using NCS will they be able to guide me on this and do we require to submit our passport with them.

[Backer]

The applicant must have been present 5 years ago to the day the application is recieved at the home office. There is no discretion over this issue. If your wife applies it has to be after 11 Dec 2010.

The possible workaround is for you to apply first and when successfull your wife can apply as a spouce of a British citizen so the requirment would be 3 years of residence and not 5. However, it will be more expensive than the joint application.

[bitsoup]

Hi

Me and my wife came to UK in July 2004, Me and my wife got ILR 16 Sep 2009, as I understand now we will be eligible for citizenship after 16 Sep 2010. My question is that if I calculate the date (5 years before 16 Sep 2010) my wife was away from UK between 7 sep – 11 dec 2005.
Does that mean she is not eligible if we apply now as she was not present in UK during this period, So , we will only be able to apply after 11 dec 2010 if we want to apply jointly.
Also, if we are using NCS will they be able to guide me on this and do we require to submit our passport with them.

Not sure, because i personnally think that u could use the "7 sep - 11 dec dec" as an absence because she was physically present in the country since july 2004.

[geriatrix]

Not sure, because i personnally think that u could use the "7 sep - 11 dec dec" as an absence because she was physically present in the country since july 2004.

The residential qualifying period is calculated from the day when we receive your application. Most unsuccessful applications fail because the applicant was not present in the UK at the beginning of the residential qualifying period. You must make sure you meet this requirement before you make your application. For example, if we receive your application on 25 March 2010, you must show that you were in the UK on 26 March 2005.

No discretion allowed.


regards

[krishna186]

How about this ??

http://www.ukba.homeoffice.gov.uk/briti ... trictions/

Refer to bullet three as below

"the time restriction was in place for less than 10 days at the beginning of the 12 month period; "

so techincally , we should be able to use this discretion of 10 days and apply such that 06th Dec would be the application date ( 16th dec - 10 days ) and hence his wife was in UK exactly 5 years back ?
I am almost in a similar situation and was trying to explore to use the discretion.

Would like guidance from this forum if what I say aboove is true ?

Regards,

[Backer]

krishna186, What you posted is correct but not relevant.
There is no link between the requirment of being free for 12 months from immigration restrictions and the 5 year (or 3 year as a spouse) presence requirement.
As advised before there is no room for discretion over this.

see below:

Residential requirements
To demonstrate the residential requirements for naturalisation, you must have:

been resident in the UK for at least five years (this is known as the residential qualifying period); and
been present in the UK five years before the date of your application; and not spent more than 450 days outside the UK during the five-year period; and
not spent more than 90 days outside the UK in the last 12 months of the five-year period; and
not been in breach of the Immigration Rules at any stage during the five-year period.

[krishna186]

krishna186, What you posted is correct but not relevant.
There is no link between the requirment of being free for 12 months from immigration restrictions and the 5 year (or 3 year as a spouse) presence requirement.
As advised before there is no room for discretion over this.

see below:

Residential requirements
To demonstrate the residential requirements for naturalisation, you must have:

been resident in the UK for at least five years (this is known as the residential qualifying period); and
been present in the UK five years before the date of your application; and not spent more than 450 days outside the UK during the five-year period; and
not spent more than 90 days outside the UK in the last 12 months of the five-year period; and
not been in breach of the Immigration Rules at any stage during the five-year period.

I understand your argument. However let me put my case with proper dates and explain my logic ( needs your review anyways )
I came to UK on 18 Sep 2005 .
Got my ILR on 21st Aug 2010.
Eligible for Naturalisation on 21st Aug 2011 as per normal rules based on a application date of 21st Aug 2011 .
But the issue is I was not in UK on 22nd Aug 2006 (exact date on 5 years) period . Infact I was not in country from 19th Aug 2006 to 30th Sep 2006 .
So my proposal is as follows :
1. Apply for Naturalisation on say 16th Aug 2011 . Based on this , I fulfil all the criteria except 12 months on ILR status prior to my application date ( 16th Aug 2010 but got ILR on 21 Aug 2010 ) . Can I not use the 10 days discretion to fulfil the 12 months ILR crieria for naturalisation ?

Regards,

[Backer]

If discretion is applied then what you suggest might work BUT I don't think this discretion was created for straighforward cases like yours


we had placed a time limit on your stay when we should not have done when you returned to the United Kingdom after a visit abroad; or
the time restriction was in place for less than 10 days at the beginning of the 12 month period;

Will you gamble your application fee on it? Why not just wait another month or two?

[krishna186]

Agree with you with the point to avoid risk , I can wait for two more months but would prefer to have it done as soon as possible given the uncertainities on these rules in the current scenario.

Having looked at the discretion para on the website again , it says

"You must be free from immigration time restrictions on the day you make your application for naturalisation as a British citizen. Unless you are married to a British citizen you should also have been free from immigration time restrictions for at least 12 months before you make your application. If you have not been free from time restrictions for 12 months, we will normally use our discretion to disregard this if:"

Hence they would normally use the discretion , hence a slight encouragement ...

Regards,

[Backer]

Regarding the new rules - you will have sufficient time prior to your application to assess if you need to submit early and depend on discretion.

Remember that the NCS might refuse to take your application so check with them when the time comes. In addition, you are required to be in the country for at least 5 business days after the applictaion is submitted. In that case you might have a problem because there is no discretion with the 5 year rule.

[krishna186]

In addition, you are required to be in the country for at least 5 business days after the applictaion is submitted. In that case you might have a problem because there is no discretion with the 5 year rule.

Why do you think I might have a issue on the 5 business days one ? Say if I apply with a application date as 16th Aug 2011 , I need to be in UK from 16th Aug 2011 for 5 days ? what has this to do with 5 year rule ?

Please note for an application date to be 16th Aug 2011 , I would need ensure that UKBA receives my application on 16th Aug ( so would need to send it via NCS couple of days early )

Regards

[Backer]

Because the 5 year rule means you had to be in the country exactly 5 years prior to the day your application is recieved by the Home office.
It means that if it starts being processed on the 19th August or after you have a problem and I don't think the NCS will allow you to submit as early as you like but you can check with them to find out when the time comes.