You asked whether time spent outside the UK by those affected by the HSMP judgement will count towards the residence period for naturalisation as a British citizen.
The requirements for naturalisation are based on a period of residence in the United Kingdom - 3 years for the spouses and civil partners of British citizens, 5 years for all other applicants. One of the requirements is that the applicant was physically present in the UK at the start of the 5/3 year qualifying period. This requirement is an unwaivable one.
Another requirement is that the applicant should not have excess absences during the residential qualifying period. Whilst the Secretary of State has some discretion to overlook excess absences, she would not normally be prepared to do so to such an extent as to render the residence requirements meaningless. As such, we would normally be prepared to exercise discretion over excess absences up to twice the permitted limits, in certain circumstances. Our policy on the exercise of discretion is published in our guidance, which can be viewed on the UKBA website:
http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/. The application form AN invites applicants to provide details of any special circumstances, where the residence requirements are not met, so that we can consider whether there are grounds to exercise discretion.
Whilst UKBA committed to take into account time overseas following the HSMP judgement when considering a settlement application, we have not taken the view that the same approach should automatically be applied to citizenship applications. The requirements for citizenship are based on the premise that an applicant should have built up a close and continuing connection with the UK, through a period of continuous residence. Where a person has been absent from the United Kingdom for a large period there is less likelihood of such links being established.
You will note, however, that our policy on exercising discretion over excess absences is generous, particularly where an applicant has demonstrated that he or she has established links with the UK through the presence of a home, estate and family here, in conjunction with there being a good reason for the absences.
Whilst we note that many benefited at the settlement stage from provisions introduced following the HSMP judgement, we have not taken the view that there are grounds to apply a blanket policy to overlook excess absences in all citizenship applications made by former HSMP beneficiaries. This is because settlement and citizenship are distinct applications with differing rationale. Those affected are, however, able to make representations about the cause of any excess absences when applying, and the grounds put forward will be considered in line with our generous criteria.
This is the policy position that we have adopted in the past. However, we have received representations on this subject and currently reviewing our position.
