5 Year/3 Year Rule - Difference in AN guidance and "Naturalisation as a British citizen by discretion" Document

Hello All,

After submitting my Naturalisation application, I noticed the following difference in the information related to 5 Year/3 Year qualification rule.

AN Guidance says
" - You must have been physically present in England, Wales, Scotland, Northern Ireland, the Isle of Man or the Channel Islands on the day 5 years before the application is received by the Home Office.
- For example, if your application is received on 05/01/2018 you should have been physically present in the UK on 05/01/2013. "

Nationality Policy : Naturalisation as a British citizen by discretion document used by case worker says
" - To identify the start of the qualifying period you use the day after the application date minus the length of the qualifying period. For example in an application under section 6(1) made on 1 March 2016, the applicant must have been legally in the UK on 2 March 2011. "

I am right now worried because my submission date is 11th Oct 2019(paid and acknowledged) and I was away between 11th Oct 2014 and 2nd Jan 2015 on a family visit. As per example given in AN guidance, I should be fine as I departed the UK on 11th Oct 2014 (hence physically present). But based on the example of the other document I wont be qualifying (i was not present on 12th Oct 2014).

I guess most of us will follow the AN guidance, in which case I clearly qualify.
Has anyone noticed this difference?
Do you think home office will consider my case as there is a difference in these two documents?

Thanks.

The letter of the law (Paragraph 1(2)(a) of Schedule 1 of the British Nationality Act 1981) aligns with the caseworker guidance; you need to have been in the UK at the start of the five year period that ends with the date of application.

So, I would interpret that as the same as the example in the caseworker guidance.

This is one requirement over which the caseworker has no discretion.

What the caseworker can do is send you a form getting you to redeclare it to another day within two months, when you would meet this requirement. That is at their discretion.

What is the date you acquired ILR?

secret.simon wrote: ↑

Thu Oct 24, 2019 12:06 pm

The letter of the law (Paragraph 1(2)(a) of Schedule 1 of the British Nationality Act 1981) aligns with the caseworker guidance; you need to have been in the UK at the start of the five year period that ends with the date of application.

So, I would interpret that as the same as the example in the caseworker guidance.

This is one requirement over which the caseworker has no discretion.

What the caseworker can do is send you a form getting you to redeclare it to another day within two months, when you would meet this requirement. That is at their discretion.

What is the date you acquired ILR?

Thank you for your response @ secret.simon. I got my ILR on 5th Dec 2017.

I tend to agree with you on the letter of law and it's interpretation.
However, AN Guidance is something that is followed by the majority of those applying and an example mentioned there will be taken seriously. I took this example literally and submitted the application to discover the caseworker's guidance later much to my dismay.

I strongly believe Home Office should accept this error (if this is an error) and consider my application in the right spirit. I have highlighted this discrepancy to the home office by email yesterday and awaiting a response. Hopefully it will be positive!

Re-declaring isn't an option in my case as I cannot apply within two months as I was away for more than 2 months. Because of this situation, I stand to lose the entire fee for trusting the AN Guidance blindly.

Will it be a good idea to give the biometrics appointment a miss?

Thanks.

bals123 wrote: ↑

Thu Oct 24, 2019 12:32 pm

I strongly believe Home Office should accept this error (if this is an error) and consider my application in the right spirit.

As I mentioned, they do not have discretion/choice in this matter. What they are likely to do is to send you the redeclaration letter, which is where they can exercise discretion.

You can date it two months in both directions, so given your ILR date, you could redeclare it to an earlier date when you do meet the requirements.

(Pages 14-15 of the Nationality Policy : Naturalisation as a British citizen by discretion document)
Where the applicant fails to meet the requirement to be in the UK at the start of the qualifying period by 2 months or less, either side of the application date, you must consider using discretion to allow them to re-declare their application. Where discretion is being exercised you must request that the applicant re-declares their application, by using Doc Gen letter 4746.

I am afraid I do not have sufficient knowledge of the consequences of the failure to turn up for biometric checks and I will leave that for others to advise you on that point.

secret.simon wrote: ↑

Thu Oct 24, 2019 12:51 pm

You can date it two months in both directions, so given your ILR date, you could redeclare it to an earlier date when you do meet the requirements.

Thanks again. I wasn't aware that the application can be redeclared to an earlier date. That will solve my problem.

Hi Bals123

did u get a response from your email sent to home office? I am experiencing a similar situation and it would be good to know which one is their approach in regards