Immigrationboards.com

Hi,
I am an Indian national and have had ILR since Nov 2019. In Aug 2020, I lost my grandmother and had to go to India and shortly after lost my grandfather in Oct 2020. Then due to the lockdown in the UK and followed by lockdown in India, I was unable to return. I have now returned back to the UK.
Days outside UK in last 12 months - 351
Days outside UK in last 5 years - 573
Would be great to get some advise on the 'discretion' that will be applied for my application to citizenship if I apply now. I have held a job in the UK for this period and also own a home for the past 5 years. So pretty established life in the UK
Would appreciate any advise. Also, can I apply on my own or would I need a lawyer for such a case?

I am also in the similar situation. But not really getting much information of it. When reading the guidelines it look likes it's entirely depend on the case worker to apply dicreation. But we really need to prove the establishment in the UK. it would be great help if other moderators and senior members advice.
Regards

bubbly123 wrote: ↑

Mon Sep 13, 2021 5:22 pm

I am also in the similar situation. But not really getting much information of it. When reading the guidelines it look likes it's entirely depend on the case worker to apply dicreation. But we really need to prove the establishment in the UK. it would be great help if other moderators and senior members advice.
Regards

Caseworker guidelines suggest caseworkers are encouraged to exercise discretion in certain circumstances - it is not entirely dependent on individual caseworkers or whatever each one of them feels like doing. The circumstances where they're encouraged to exercise discretion are listed in the guidelines. Pandemic related excess absences is one of these circumstances and any evidence you can provide that you could not travel because of the pandemic will go a long way.

That said, with excess absences you must also demonstrate that you have established your home, employment, family and finances in the UK. In other words, the UK is your home and there's strong links here that are likely to keep you here. This is where the future intentions requirement comes into play. And, this is a separate requirement to the normal permitted absences / residence in the UK requirement, and must still be met.

You also have to bear in mind that absences in the qualifying period, whether 3 or 5 years depending on your situation, and absences in the final year are treated separately. If you have absences in both and your absences in the final year exceeded 180 days, apart from having to demonstrate that you have made the UK your home you will also have to demonstrate that there are exceptional circumstances.

At the end of the day, nobody can give you any guarantees and a solicitor, no matter how good he or she may be, won't change the requirements you have to meet so I'm not sure what one could do for you that you can't do yourself. And, of course there's no guarantee discretion will be applied. However, if you can demonstrate with solid evidence that you couldn't travel because of Covid, have made the UK your home etc and your absences do not exceed those covered in caseworker guidelines chances are your application will be approved.

There is discretion to disregard the absences requirement, but the exercise of discretion should not be confused with caprice. The exercise of discretion is laid out in the Naturalisation AN caseworker guidance.

For absences exceeding 480 days, the following expectations need to be met (see Page 11 of the guidance linked to above).

Absences normally disregarded only if you meet all other requirements (i.e. you don't need discretion to meet some other requirement as well) AND you have established your home, family and a substantial part of your estate here. Also, if your absences are up to 730 days we (the Home Office) would expect you to have been resident in the UK for the last 7 years.

In the case of the OP, I think the first condition (meeting all other requirements) will fail, as they need discretion to disregard two requirements (absences in both the one year period and the five year period). Therefore the chances of the application failing are higher.

I think the chances of discretion being used to disregard the absences in the last year are next to nil, with the OP having been away for almost the entire year. I would suggest that they wait for nine months, with no further visits outside the UK, before making the application. That would bring their absence in the last year under 90 days, which would make exercise of discretion for the absence over five years easier.

Also, the exercise of discretion requires a reason. As a Commonwealth citizen with ILR, the OP has almost all the same rights as a British citizen within the UK, with no restriction on how long they can live in the UK. They should therefore summarise in the application form why they cannot wait until they meet the absence requirements before making the naturalisation application.