Intriguing Naturalisation Question

Hi,

I'm due to apply for Naturalisation in May. Given that joint application fees is less, I'm looking to apply my wife for her as well. Problem is her case is very peculiar but I don't wish to wait longer given the new naturalisation rules in the pipeline stay. Please see summary of her case below:

Sep 2003 - Dec 2006: Resident on WP in UK
Jan 2007 - Feb 2008: Away for compassionate reasons (relative's surgery). In June 2007, she entered as a visitor - not with a visitor visa since her nationality doesn;t require a visa to enter UK
Feb 2008 - Re-entered UK as my wife on a HSMP dependent visa
May 2008 - Granted ILR along with me

Total absences in May 2009: 590

I know her absences are above the threshold but we'll submit evidence of hospital bills etc for compassionate leave.

However, my MAIN question was given she was away for one year and given she entered as a visitor, does her period of 5 years from May 2004 - May 2009 count towards naturalisation? I spoke to a lawyer who said that this does not pose an issue because unlike ILR, the residence need NOT be continuous.. ANY legal residence in the UK counts.

Does anyone have experience or thoughts on whether this is correct? Also, has anyone applied successfully with over 540 days absence?

PLEASE ADVISE!!!!!

I can request her to wait for 3 years from the date she entered as a dependent but that runs the risk of her getting caught in the new rule.

SidB wrote:However, my MAIN question was given she was away for one year and given she entered as a visitor, does her period of 5 years from May 2004 - May 2009 count towards naturalisation? I spoke to a lawyer who said that this does not pose an issue because unlike ILR, the residence need NOT be continuous.. ANY legal residence in the UK counts.

Annex B: The residence requirements > 2.3:

Physical presence here is normally sufficient for the purpose of the Act. The applicant does not have to be ordinarily resident or domiciled here. Normally, an applicant is to be regarded as present in the United Kingdom unless physically absent; but in certain circumstances, the Act requires periods of physical presence to be treated as absences (see paragraph 9 below).

I would put money on the lawyer and go ahead with application. But please make sure he/she knows the stuffs and has handled cases like yours where there is clear medical history, valid reasons, justify the long absense making it exceptional circumstances to grant citizenship. Good luck

SidB wrote:Hi,

I'm due to apply for Naturalisation in May. Given that joint application fees is less, I'm looking to apply my wife for her as well. Problem is her case is very peculiar but I don't wish to wait longer given the new naturalisation rules in the pipeline stay. Please see summary of her case below:

Sep 2003 - Dec 2006: Resident on WP in UK
Jan 2007 - Feb 2008: Away for compassionate reasons (relative's surgery). In June 2007, she entered as a visitor - not with a visitor visa since her nationality doesn;t require a visa to enter UK
Feb 2008 - Re-entered UK as my wife on a HSMP dependent visa
May 2008 - Granted ILR along with me

Total absences in May 2009: 590

I know her absences are above the threshold but we'll submit evidence of hospital bills etc for compassionate leave.

However, my MAIN question was given she was away for one year and given she entered as a visitor, does her period of 5 years from May 2004 - May 2009 count towards naturalisation? I spoke to a lawyer who said that this does not pose an issue because unlike ILR, the residence need NOT be continuous.. ANY legal residence in the UK counts.

Does anyone have experience or thoughts on whether this is correct? Also, has anyone applied successfully with over 540 days absence?

PLEASE ADVISE!!!!!

I can request her to wait for 3 years from the date she entered as a dependent but that runs the risk of her getting caught in the new rule.

Residency for naturalisation does not need to be continuous. Just make sure she was in the country exactly five years ago (three if you apply separately and get citizenship) from the date of application and she's got her absences down.

SidB wrote:Jan 2007 - Feb 2008: Away for compassionate reasons (relative's surgery). In June 2007, she entered as a visitor - not with a visitor visa since her nationality doesn;t require a visa to enter UK

There is one aspect of her facts that concerns me, and the question I have to ask is ...... so she entered the UK as a visitor in June 2007. Was she here continually until February 2008? That is, was she an overstayer?

John wrote:

SidB wrote:Jan 2007 - Feb 2008: Away for compassionate reasons (relative's surgery). In June 2007, she entered as a visitor - not with a visitor visa since her nationality doesn;t require a visa to enter UK

There is one aspect of her facts that concerns me, and the question I have to ask is ...... so she entered the UK as a visitor in June 2007. Was she here continually until February 2008? That is, was she an overstayer?

No, not at all. When she left the UK, it was with an understanding that her work permit is no longer valid since she left her job. From Dec 2006 till June 2007 she was not in the country at all. When she landed, she stated her intentions truthfully at the counter - which is that she is here to visit me. Her nationality doesn't require a tourist visa to enter the UK so she was granted permission at the airport itself and then she left the UK again after 2 weeks. Pretty sure the officer wouldn't have granted permission to enter on WP since they didn't ask her any employment related questions. So she is definitely not an overstayer.. My main reason to bring it up was to find out whether that "breaks" the continuous residence of 5 years.. but apparently "continuous" is a requirement for ILR and not naturalisation (except for assessing whether there is an intention to stay which there is since she is married to me and i am applying for naturalisation as well).

vinny wrote:

SidB wrote:However, my MAIN question was given she was away for one year and given she entered as a visitor, does her period of 5 years from May 2004 - May 2009 count towards naturalisation? I spoke to a lawyer who said that this does not pose an issue because unlike ILR, the residence need NOT be continuous.. ANY legal residence in the UK counts.

[url=http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nichapter18/ch18annexb]Annex B: The residence requirements[/url] > 2.3 wrote:Physical presence here is normally sufficient for the purpose of the Act. The applicant does not have to be ordinarily resident or domiciled here. Normally, an applicant is to be regarded as present in the United Kingdom unless physically absent; but in certain circumstances, the Act requires periods of physical presence to be treated as absences (see paragraph 9 below).

Thanks Vinny - this is a great resource. It confirms the lawyer's version as well. I found the para below quite informative as well:

Total Absences of up to 900 (540) days
order, and if applicants have established their home,
should also expect: a. at least 2(1) years residence (without substantial absences) immediately prior to the 5(3) year qualifying per
period of prior residence should be at least 3(2) years; or the excess absences to have been due either: i. to pos
paragraphs 9.3-9.4 below). [NB. Spe
former members of HM Armed Forces (see Annex B(i))]; or to accompanying a British citizen spouse/civil partner on an overseas appointment (
service); or excess absences to have been an unavoidable quence of the nature of a career (for example chant seaman
- 6 -
or employment which requires frequent travel
abroad); or
exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, including, for example, because the
professional requirement.

She definitely doesn't fit in the 2 year continuous residence part (she would in Feb 2010) but the OR highlighted above suggests she can go for the compassionate reason which was her main reason to leave. Her father had undergone life saving saving surgery and that was followed by another critical surgery a few months later. Now the question is does the Home Office treat these as "Exceptionally Compelling" reasons?

Any thoughts on that?