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I am british citizen my wife came to uk on spouse visa in Nov 2005, she did not have the KOL test so I applied for FLR which she got,

In Nov 2009 she left the country and during her time out of the country her FLR had expired, so I had to re-apply for a spouse visa for her which she got and she entered uk on feb 2010.

We have 2 british born kids together, I am now wanting to know If she can apply for British Citizenship or should she apply for ILR first? As you can see we have been living togther for a long time but she doesnt have ILR at the momment?

Any help would be appreciated

It's not possible to apply for naturalization without ILR. Being free from immigration time restrictions is a mandatory requirement. There are also limits on the amount of cumulative absence during the qualifying period.

looking at the BA website it states that there maybe discretionary times when you can do so is that true in this case?

We can only comment on what you tell us. If you already know the rules (or can see them) then you can see for yourself whether or not her situation matches the circumstances where discretion may be applied.

nasxtra wrote:looking at the BA website it states that there maybe discretionary times when you can do so is that true in this case?

Hi nasxtra,

The Home Office's guidance notes state that the is NO discretion to waive the requirement of being free from immigration time restrictions on the date oof the application. This does not necessarily mean that your wife needs to have Indefinite Leave to Remain. Please see below extract from page 14 of the notes (link provided above for the full details)

All applicants for naturalisation must be free of immigration time restrictions on the date of application. There is no discretion to waive this requirement. This does not mean that the applicant must have ILE or ILR. The following people may also be regarded as meeting this requirement:
• people who are not in the United Kingdom (but see 7.3 below)
• people who have entered the UK illegally (whether clandestinely, in breach of a deportation order or by their own or another person’s deception) and have not been granted limited leave;
• people refused leave to remain prior to 2 October 2000 who are not required to leave the United Kingdom by virtue of having immigration appeals pending against those refusals (see paragraph 8.3);
• people exempt from immigration control under s.8(2), 8(3) or 8(4) of the Immigration Act 1971 (however, those exempt under s.8(3) or 8(4) will be technically absent - see paragraph 9 below);
• certain EEA or Swiss nationals or their family members (see "EUROPEAN ECONOMIC AREA AND SWISS NATIONALS" in Volume 2)

Hope this helps.

Bullets 1, 2, 3 - none applies to OP's wife.
Bullet 4 - Those under EEA directives are not granted ILE or ILR, but acquire PR (under EEA directives).

sushdmehta wrote:

BigSam wrote:This does not necessarily mean that your wife needs to have Indefinite Leave to Remain.

And how does one become free from immigration time restrictions without either having been granted ILR or acquiring PR - in the OP's case? Please explain.

Hi sushdmehta,

The guidance note state that if someone if not in the United Kingdom then technically they are not subject to immigration time restrictions. Section 7.3 explains that applicants who apply from outside the UK for the sole reason of meeting this requirement will normally be rejected. I personally cannot think of how this can be applicable to anyone.

Another scenario where no Indefinite Leave to Remain or Permanent Residence will be required is for the nationals of Switzerland and their dependants.

I edited my post because I was suspecting a response (to that post) like the one above (note the reference "- in OP's case"). Guess was late in editing it!

I believe OP wants to know of the possibility in his circumstances - to which I have responded accordingly above (in context of the text you have quoted from the guidance).

Off-topic:
As for Swiss nationals and their dependants, EEA directives apply (and therefore PR - automatic acquisition or by confirmation - is required).

nasxtra, you wife needs to apply for ILR.

Thanks for the clarification about Swiss nationals.

I noticed that you edited the post while I was responding to it but after I submitted my post. I have personal interest in finding out how point 1 has been used by individuals, if any at all. I will do some digging and share the information when I find it. If you know of any cases where this has been used, please let me know.

I guess the bottom line for nasxtra is that his wife needs to apply for Indefinite Leave to Remain first.

Thanks