Naturalisation Qualifying Period

[secret.simon]

Most modern Acts of Parliament do not come into effect immediatly on Royal Assent, but give the government power to bring specific sections into force by "commencement orders".

Unfortunately there is no definitive list of commencement orders that I could find. A Member of the House of Lords had better luck in 2010.

It seems (I am not sure) that Sections 39-41 of the Borders, Citizenship and Immigration Act 2009 have not yet been commenced, hence the "Prospective" tag on them on the Legislation.gov.uk website.

In any case, your father's application should be protected under Section 58(9)-(11) of that Act, which exempts people who already have ILR from the application of these provisions for two years after the commencement of the sections listed above.

What I don't get is there are various posts on this forum citing Section 2.3 of ANNEX B to Chapter 18 of British Nationality Act 1981 states that all he needs to do is be physically present in the U.K. for the 5 year period (3 year in case of spouse) and various people stating on this forum that they have been naturalised using their visit period.

This is a completely different requirement. The requirement to be physically (and legally) present in the UK at the beginning of the five year period is a requirement of Schedule 1, Section 2(a) of the BNA 1981 and has been a requirement since 1983. That only requires a continuous legal (Section 2(d)) presence of five years. Such legal presence can include a period under a visit visa.

I hope that clarifies matters and eases your mind.

[arbi580]

Thanks Noajthan...I picked up and thanked you for your earlier reply, but as you were the only one who had replied, about it all seeming in order, we just wanted a bit more assurance before we bit the bullet! When you say hive mind, does it mean that the mods consult and reach a conclusion. If so, then I am much more confident if the collective opinion is that it all seems in order. I wrote a response to an earlier post by Char and was hoping he too would get back and weigh in.

We were going to use NCS anyway, but from my last interaction with them for my little brothers case, they just walk the line and get a blank look when the case has even the slightest hint of complication.

I called the Home Office and they said I should email the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk) with his circumstances to check his eligibility. What do you think? Should we ask them?

I will also call an OISC advisor per your suggestion and get their views.

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

[CR001]

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

Please see secret.simon's response (click) above your post. He details it very nicely for you.

[secret.simon]

"Hive mind" is a reference to the collective wisdom of the forum. If somebody wanted to advise adversely or otherwise regarding your application on these forums, s/he would have done so. That is the concept of the "hive mind" - collective thinking.

The moderators are not lawyers, they are just contributors who have the time, inclination and manners to moderate the forums (i.e. ensure that the rules are being observed).

As an aside, did my post not answer your question?

Can I suggest that for absolute certainty, you submit an FoI request to the Home office (email: foirequests@homeoffice.gsi.gov.uk) asking specifically if Sections 39-41 of the Borders, Citizenship and Immigration Act 2009 have been commenced and if so, can they provide a copy of the commencement order?

If they have not been commenced, you have nothing to fear and if they have been, they do not apply to your father's case if they were commenced less than 2 years ago.

EDIT: Thanks, CR001

[noajthan]

Thanks Noajthan...I picked up and thanked you for your earlier reply, but as you were the only one who had replied, about it all seeming in order, we just wanted a bit more assurance before we bit the bullet! When you say hive mind, does it mean that the mods consult and reach a conclusion. If so, then I am much more confident if the collective opinion is that it all seems in order. I wrote a response to an earlier post by Char and was hoping he too would get back and weigh in.

We were going to use NCS anyway, but from my last interaction with them for my little brothers case, they just walk the line and get a blank look when the case has even the slightest hint of complication.

I called the Home Office and they said I should email the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk) with his circumstances to check his eligibility. What do you think? Should we ask them?

I will also call an OISC advisor per your suggestion and get their views.

Finally I have not got any response to my related question about the Borders, Citizenship and Immigration Act 2009 which is stated above in the forum. I think this is at the root of the issue and wanted to know if the stipulations of this act with regards to amendments to BNA1981 are being practised or if they are on hold for some reason.

I'm just trying to help my Dad out and save him some time if I can. Again we are very grateful for all the help and time you have taken to read this.

No, the hive-mind is not organised as formally as that (and ofcourse I've never met my co-moderators, female and male)
- it's just how I see an internet bulletin board or forum tending to work:
kind of organically with valid opinions bubbling up and surfacing over time.

NCS are not immigration advisors - it's just another level of basic sanity-checking (but they can and do come up trumps at times).

Pro tip: do not rely on the HO helplines; they can be unreliable and are not held accountable for the advice offered.
Ofcourse neither are we here on this board, but we are not HO.

I think Simon has just given an erudite opinion on the 2009 question.

[micz8]

Hi arbi580
I am in same situation as you were in 2011.
I am trying to send you private message but for some reason its not going through.
Could you please guide me how to proceed with the application
Thanks

[secret.simon]

Hi arbi580
I am in same situation as you were in 2011.
I am trying to send you private message but for some reason its not going through.
Could you please guide me how to proceed with the application
Thanks

Firstly rules have changed drastically since 2011. Since July 2012, it is practically impossible to get your parents here on a visit visa, let alone get them to settle in the UK. Search online and on these forums for Adult Dependent Parent visa.

Secondly, arbi580 has less than 30 posts. 30 posts are required for PMs to work.

[CR001]

Hi arbi580
I am in same situation as you were in 2011.
I am trying to send you private message but for some reason its not going through.
Could you please guide me how to proceed with the application
Thanks

User arbi580 does not have access to PM function yet so will be unable to see or read your message.

What situation are you in? The rules are very different now to back in 2011. You should start your own thread with your own questions to avoid confusion when members respond.

EDIT : beaten by secret.simon

[arbi580]

Thanks Noajthan and Secret Simon. I just saw Secret Simons reply. Buddy you answered my question and then some. As it had gone to the second page I missed it. You have now given me much needed clarity about the Borders, Citizenship and Immigration Act 2009 as well as the workings of the forums. I am sure it will be helpful to others after me also.

I note about the FOI request. However I am inclined like you to think that Section 39-41 have not commenced as if they had we would see them on the following link which says it is up to date as at 22 April 2016 and still shows the relevant amendments as Prospective.

http://www.legislation.gov.uk/ukpga/1981/61/schedule/1

Do you reckon I should email the people at the Nationality contact centre (nationalityenquiries@homeoffice.gsi.gov.uk)? They suggested I do?

So to summarize based on the information provided, Secret Simon can you confirm that you agree that we can rely on Section 2.3 of Annx B (Ch. 18 of BNA 1981) and apply for him to be Naturalised from 12 May 2016 as he was legally present (on a visit visa) in the UK from 11 May 2011 and has not been out of the UK for 90 days in the last year or 450 days over the last 5 years and meets all other requirements also?

[secret.simon]

UK Acts don't have chapters, they have sections. And it is not annexes, but schedules. Annexes and chapters occur in continental European/civil law terminology, not in UK law.

But anyway, I am splitting hairs (only because I was getting confused by the references to annexes and chapters till I figured out what was meant). Have a read of Schedule 1 which summarises the requirements for naturalisation pretty well.

Reverting to your question,

So to summarize based on the information provided, Secret Simon can you confirm that you agree that we can rely on Section 2.3 of Annx B (Ch. 18 of BNA 1981) and apply for him to be Naturalised from 12 May 2016 as he was legally present (on a visit visa) in the UK from 11 May 2011 and has not been out of the UK for 90 days in the last year or 450 days over the last 5 years and meets all other requirements also?

Yes, he should he fine with applying for citizenship. Make sure you read through and provide all the paperwork required in Form AN, Guide AN and Booklet AN.

[arbi580]

Thanks Secret Simon. Thats me sorted now.

On a side note...I some how just got the PM from micz8...dunno how! Sure I will do my best to help, but like you and others say, rules have changed. We got there in just in time with our applications before things changed!

Believe it or not, we applied for my Dad and Mom at the same time. Home Office misplaced my moms application but approved my Dads and sent it back in Feb 2012.

We then resent my Moms and also sent an ILR app for my little brother who was doing his A Levels and on a student Visa. He was just a week away from his 18th birthday. I rushed all the paperwork and got his application ready and delivered 2 days before his 18th birthday. We applied for him as an under 18 dependant on his father who had ILR. He got approved for ILR in 6 months and became a Citizen in Sept 2013.

Had the Home Office taken one more week to send back my Dads ILR, my little brother would have been in heap of trouble at this point probably on a student visa waiting for the 10 year rule to become applicable, which means he would have been applying for ILR right about now, instead of earning a chunky wage packet with the biggest accounting firm in London!

My little brothers ILR app was against my solicitors advise and much to his admonishment. My solicitor felt rightly that if we applied for his ILR his student status would get cancelled and he would be treated as someone who wants to settle. As such future student applications would fail.

I did it anyway, because I felt that we had a strong case and relied on my understanding of the law and the rules relating to his case. I have always found (having had around 15 years of dealing with Home Office for myself, my family and friends) that if you are within the letter of the law, the Home Office does not deny your application.

[secret.simon]

if you are within the letter of the law, the Home Office does not deny your application.

We call it the rule of law.

[arbi580]

Tomato - TOMATO!

[secret.simon]

While researching this issue, I came across an absolutely fascinating - for me anyway. I tend to live on another planet and drop down to Earth when I have to come in to work - guidance note on Common Commencement Dates. It gives an explanation of how secondary legislation is planned in the government departments, apart from planning for commencement orders. I would recommend a read if you have difficulty sleeping.

As an aside, in this document dated August 2010 and well before any proposals for a referendum, it states that about half of business related regulations come from the EU. Interesting.

[arbi580]

Hmmm...that is interesting. I had a brief look at it. Will help as a sleeping aid for sure. I guess the hold the EU has on us is something we are all aware of and choose to ignore. The EU argument is a simple one for me to be honest. I was thinking about it just this morning.

The Remain campaigns arguments are always somewhere along the lines of if you exit you will not have protection / security, the economy will shrink and the average household will be worse off by £2000 / £4000 / £6000 per year depending on what statistic they are pushing on that particular day. If you remain yes you will have to do as you are told whether you like it or not but in return you will be given protection, your live in a growing economy and you get to keep the £1000s per month that you would otherwise lose!

So effectively the EU is the UK's Pimp and the advise we're getting from the government is to stick with them or risk being left out in the cold with no money in your pocket! I for one don't see how one can give away ones freedom for £5000 per household per year. What can one say at this sorry state of affairs!

[secret.simon]

Excellent points. Do see and comment further here.