Naturalisation Refusal - not physically in uk 5 years prior to application date

[Izzyz24]

Hello all, would appreciate some advice on next steps.

I recently received a refusal of citizenship for 5 year naturalisation as I was not physically present in the UK 5 years prior to the date of my application submission ( June 24).

The dates I was away were May 19 2015 - August 28 2015 in my home country.

I understand that the case workers can apply discretion if you were in the UK within 2 months either side of of the application day 5 years prior ( in my case either April 24 2015, which I was. Or August 24 2015, which I was not)

I never received any communication from the Home Office about re-declaring my application. Would this normally come in a letter or email? From what I have read on the forums, case workers generally seem to apply discretion. Any idea why this wasn't the case for me?

Should I fill out the reconsideration form or will I have to reapply from scratch?

[CULLINAN]

Usually CW apply discretion. You can ask for a reconsideration. Hopefully it will be overturned. Make sure on the date of reconsideration you qualify.

https://www.gov.uk/government/publicati ... ed-form-nr

[Izzyz24]

I'm worried that there is some other reason that they did not apply discretion. The guidance clearly states,

"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 have no idea why they didn't think I met the above criteria?
Is it possible they sent me a physical letter that I didn't receive for some reason?

[CULLINAN]

Sometimes CW is ignorant about the rules. I can not say for sure if a letter was sent or not. Usually these days email is sent not post.

[alterhase58]

Most unfortunate that the applicant wasn't given the chance to re-declare when it was clearly within the discretion of caseworkers. And now has to apply for reconsideration.

I know things are always easier in hindsight - however, to avoid any complications in this and other areas applicants should perhaps wait for a while until they have a clear day available and not rely on cw discretion. Naturalisation is a discretionary application, you don't have to apply for it or apply at a certain date, and you still have your ILR.

[secret.simon]

My understanding is that discretion is generally exercised if the application would have succeeded but for one defect. So, if all but one requirements were met, discretion would have been applied.

The distinguishing factor in the case of absence from the UK at the start of the five year period is that in fact, the Home Office has no discretion to completely disregard it as per law. This is the one condition over which the Home Office has no discretion to disregard.

So what the Home Office does instead is that at discretion, it allows the applicant to redeclare the date of application, thus changing the five year period that is used to calculate the physical presence, but also the absences (both five year and one year). So, in effect, the date of application is changed.

And there are a lot of other requirements based on the date of application. So, on the new date of application, would the OP meet the 1 year ILR, five and one year absence requirements? If not, there is no point in exercising discretion as the application would likely fail on multiple grounds.

I understand that the case workers can apply discretion if you were in the UK within 2 months either side of of the application day 5 years prior ( in my case either April 24 2015, which I was. Or August 24 2015, which I was not)

So, in this case, if the date of the application is treated as April 24th 2020, would the OP meet the one year ILR requirement, would his absences for both the five year and one year period from that date be under the relevant requirements?

I think the discretion would not have been exercised if after the redeclaration, the application would then have required discretion exercised again to disregard the absence and/or the one year ILR requirement, etc.

If all these requirements would have been met if the OP had applied on 24th April 2020, then they have a chance at reconsideration. Else, I suggest that they make a new application on a date where they do meet all the requirements.

[Izzyz24]

Thank you all for the advice.

My understanding is that discretion is generally exercised if the application would have succeeded but for one defect. So, if all but one requirements were met, discretion would have been applied.

The distinguishing factor in the case of absence from the UK at the start of the five year period is that in fact, the Home Office has no discretion to completely disregard it as per law. This is the one condition over which the Home Office has no discretion to disregard.

So what the Home Office does instead is that at discretion, it allows the applicant to redeclare the date of application, thus changing the five year period that is used to calculate the physical presence, but also the absences (both five year and one year). So, in effect, the date of application is changed.

And there are a lot of other requirements based on the date of application. So, on the new date of application, would the OP meet the 1 year ILR, five and one year absence requirements? If not, there is no point in exercising discretion as the application would likely fail on multiple grounds.

I understand that the case workers can apply discretion if you were in the UK within 2 months either side of of the application day 5 years prior ( in my case either April 24 2015, which I was. Or August 24 2015, which I was not)

So, in this case, if the date of the application is treated as April 24th 2020, would the OP meet the one year ILR requirement, would his absences for both the five year and one year period from that date be under the relevant requirements?

I think the discretion would not have been exercised if after the redeclaration, the application would then have required discretion exercised again to disregard the absence and/or the one year ILR requirement, etc.

If all these requirements would have been met if the OP had applied on 24th April 2020, then they have a chance at reconsideration. Else, I suggest that they make a new application on a date where they do meet all the requirements.

Yes, that was my understanding as well. I have permanent residence from March 2018. Both my 5 year absence and 12 month absences are well within the requirements even if the application date is treated as April 24 2020 or even todays date.

Would the caseworker make it clear in the refusal letter if there was another reason that the application would be unsuccessful, even if the discretion was applied? I am concerned that I would now apply for reconsideration or make a new application and have not been told of another problem.

[secret.simon]

I have permanent residence from March 2018.

(a) Do you have a DCPR or a PR Card or a letter stating that you meet the PR conditions in March 2018?
(b) Why did you wait until a time when you did not meet the physical presence requirement?

Would the caseworker make it clear in the refusal letter if there was another reason that the application would be unsuccessful, even if the discretion was applied?

To the best of my knowledge, the caseworker does not need to list all the reasons for refusing the application. It is perfectly possible for other reasons to exist.

It is the responsibility of the applicant to be sure their application meets all the requirements, not the caseworker's to draw the applicant's attention to the deficiencies in the application.

I suggest that if you were to apply for reconsideration, you go through the application requirements again very very carefully to review the strength of your case.

[Izzyz24]

(a) Do you have a DCPR or a PR Card or a letter stating that you meet the PR conditions in March 2018?
(b) Why did you wait until a time when you did not meet the physical presence requirement?

Thanks again for the quick response, it is really helpful.

a) I have a PR card and letter dated March 7 2018.
b) I had been completing my application over several weeks and unfortunately, I missed the requirement about physical presence on the exact date of application submission - huge mistake on my part. I went through everything else very carefully which is why I was surprised with the refusal. I will definitely be going through it again with some additional help.

I wonder if it is worth having a lawyer read through to advise about reconsideration vs new application? Especially if I can't be sure if there was another issue I am missing.

[secret.simon]

I wonder if it is worth having a lawyer read through to advise about reconsideration vs new application? Especially if I can't be sure if there was another issue I am missing.

Whether you wish to use a lawyer is for you to decide. Most people on these forums, including me, have made their applications directly and been successful.

On the other hand, the fact that discretion was not exercised may suggest that there is another issue with the application.

Or it could be a careless caseworker who may have only calculated that you would not meet the physical presence requirement even two months after the date of application, not checking to see if you did so two months before.

You could apply for a SAR to see the notes that the caseworker has left on the file, to see what issues that may have noticed on the application and if any reason was given for not exercising discretion in your case.

Provided that you have the documentation for the PR card, I think that you have a strong case for reconsideration.

That costs much less than the naturalisation application, but be aware that there is no time limit on how long reconsideration can take.

[Obie]

If they fail to exercise discretion in circumstances where a publicised policy says they should, that is an error of law.

It may be worth sending a PAP threatening JR, and that may help you avoid having to pay reconsideration fees.