Please help: Naturalisation Eligibility and CW discretion

[LadyC]

Hello,

Firstly, I want to thank the moderators for their advice. Apologies if my questions have being answered previously(couldn't get answers after reading several threads). I will try and articulate my situation and plans.

I am currently on the 30months FLR (M) and is due to apply for ILR anytime from 22nd September 2022 since my entry date into UK is 19th October 2017.
Please see the key dates and plans below:

Date of entry into UK : 19th October 2017

Travelled to my home country: 18th september 2019 while on mat leave.

Came back to the UK: 26th Feb 2020.

Intended date for ILR application based on priority service: The week commencing 22nd September 2022 and hopefully I will get a positive decision since I meet all the requirements.

I plan to apply for naturalisation following the ILR by 1st week in October 2022, but I just realised that I was not physical present in the UK 3 years ago at the beginning of the qualifying period ie Ist week in October 2019 since I travelled on 18th Sept 2019 and came back 26th Feb 2020.

Reason for extended trip: I gave birth to my daughter in August 2019 and travelled home ( my daughter was only 7weeks) to see my dad who was not feeling well.My trip was meant to be for only 3weeks but I started exhibiting post partum depression symptoms, so I had to stay back home to get extended family support hence my extended visit.This was also communicated during my FLR application under absences just for their information.

I understand that the case workers can apply discretion if you were in the UK within 2 months either side of of the application day 3 years prior, in my case I was in UK 15 days or less before the start of 3 years qualifying period and I would be meeting all the other conditions for the 3 year route to naturalisation.

Please can someone advise on the following:

1) If I would be eligible to apply for naturalisation by 1st week of October and I request the CW to please consider my circumstances and also refer to my FLR application (hopefully apply some discretion)?

2) Is it my right to request the CW to apply some discretion? Ie Is there a particular section on the guidance note that I should refer the CW to?

3) Has someone here being in similar situation and got a positive decision? Please share link

4) Can my application be approved based on section 6.1; the 5 years qualifying period if I decide to apply by 20th Oct 2022 rather than 6. 2? Or I must have my ILR for atleast 1 year before it can be approved under section 6.1 route?

Any advice on how to get my citizenship as soon as possible would be greatly appreciated.

Thanks

[LadyC]

***please ignore my typos

[strong_and_stable]

I understand that the case workers can apply discretion if you were in the UK within 2 months either side of of the application day 3 years prior, in my case I was in UK 15 days or less before the start of 3 years qualifying period and I would be meeting all the other conditions for the 3 year route to naturalisation.

No, the Home Office cannot exercise any discretion regarding you being physically present on the date 3 or 5 years before your application unless you/spouse were serving the UK Government overseas. Parliament did not give the Home Office (i.e. the Secretary of State) such permission when they wrote the British Nationality Act 1981.

The two month rule allows the case worker to put your application on hold for 2 months and then ask you to re-apply without you losing your application fee.

4) Can my application be approved based on section 6.1; the 5 years qualifying period if I decide to apply by 20th Oct 2022 rather than 6. 2? Or I must have my ILR for atleast 1 year before it can be approved under section 6.1 route?

Potentially, yes. You can ask to be considered under section 6.1. The Home Office does have legal permission to waive the 12 month ILR requirement so long as you hold ILR at the date of your application. But they will only do so according to their policy:

the period of limited leave was more than 90 days at the beginning of the 12-
month period, and:
o the applicant meets all the other requirements
o the applicant has strong links with the UK through having established their
home, property and family here
o there are compelling business or compassionate reasons to justify granting
now

Even if you can demonstrate that, keep in mind that asking for discretion is likely to delay your approval anyway. So you may be better off just waiting until you can satisfy the 3 year rule.

https://assets.publishing.service.gov.u ... retion.pdf

[LadyC]

@strong_ and stable_ Thank you for your advice

Please see below section from Naturalisation by discretion guidance especially the wording highlighted in yellow:

Residence requirements: 6(2)
The residence requirements which someone applying under section 6(2) of the
British Nationality Act 1981 are that the applicant was:
• in the UK at the beginning of the period of 3 years ending with the date of
application
• not absent from the UK for more than either:
o 270 in that 3-year period
o 90 days in the period of 12 months ending with the date of application
• not, on the date of the application subject under the immigration laws to any
restriction on their period of stay in the UK
• not, at any time in the period of 3 years ending with the date of application in breach of immigration laws

There is discretion to waive the residence for applications under section 6(2) of the
British Nationality Act 1981with the exception of the requirement that the applicant is
not subject under immigration law to conditions on their period of stay in the UK on
the date they make their application.


What do you think please?

[secret.simon]

I think the description given in the naturalisation guidance is misleading.

There is no discretion in the nationality law to disregard the physical presence requirement, for either the five years or three years conditions.

See Schedule 1 of the British Nationality Act 1981 which is the law on this point, in particular subsections 3 and 4, which apply to the spouses of British citizens.

As there is no discretion to disregard the requirement, the Home Office allows you to redeclare the application to another date within two weeks of the date of application when the requirements are met.

There also does not seem to be discretion to disregard being free of immigration restrictions (holding ILR) on the date of the application.

If you were to redeclare your application to 15 days before your got ILR, that date would be treated as the date of your application and your application would then fail on that basis (because that date would be the date of your application and you would not have ILR on that date).

You essentially need to meet both the requirements; being physically present three years before the date of application AND having ILR on the date of application, to apply under Section 6(2).

4) Can my application be approved based on section 6.1; the 5 years qualifying period if I decide to apply by 20th Oct 2022 rather than 6. 2? Or I must have my ILR for atleast 1 year before it can be approved under section 6.1 route?

You need to meet all the requirements of either Section 6(1) (listed in subsections 1 & 2 of Schedule 1 of the BNA 1981, linked to above), including the one year of ILR, or those of Section 6(2)(listed in subsections 3 & 4 of Schedule 1 of the BNA 1981, linked to above). You can't mix-and-match the requirements.

[LadyC]

@Secret.simon thank you for your advice