Small gap in lawful residency

[StruggleisReal]

Hi

I’m creating this separate post as it’s a new topic and to save myself and others from confusion.

I’m in the process of helping a relative complete their citizenship application and have come across a hiccup

In short their history in the last 10 years is as follows

November 2015 - Granted 5 year EEA family Visa till November 2020

September 2020 - applied for settled status through a friend and this was rejected in Feb 2021 due to insufficient evidence. This friend fell ill due to Covid and subsequently died. They did not give the applicant any login details to the application so the applicant was not aware what was happening to their application.

March 2021 ( more than 28 days after the above rejection) - applied for Settled Status and this was granted in June 2021


There was a small gap of 35 days in which they did not have a valid visa as per my understanding and overstayed - is this correct?

So my question is if they can apply for Naturalisation now in November 2025.

Please note that this is the only thing not in favour of them, otherwise they are a law abiding citizen.

I’ve been reading lots of information that the home office can exercise discretion and grant citizenship if there’s a period of overstay.

Please can someone let me know if it is okay to have this overstay period in their 5- years qualifying period?

Or should they wait till June 2026 and apply then?

[contorted_svy]

I believe that should not be a problem, from the good character guidance https://www.gov.uk/government/publicati ... accessible

Lawful residence
An immigration breach relating to lawful residence includes:

overstaying
illegal entry
absconding
failing to comply with the requirements of the EEA Regulations 2016, as saved
Prior to 28 June 2022, immigration breaches in the 5-year period before a citizenship application were normally a reason for refusal of citizenship on the grounds of not meeting the lawful residence requirement set out in section 4 and section 6 (read with paragraphs 1 and 2 of Schedule 1) of the British Nationality Act (BNA) 1981. If the breach was in the 10-year period before a citizenship application, it was normally grounds for refusal of citizenship on the basis of not meeting the good character requirement.

Schedule 1 of the Nationality and Borders Act 2022 (NABA 2022) amended the requirements for naturalisation and registration for British citizenship under sections, 6(1) and 6(2) of the BNA 1981, so that a person can be treated as meeting the lawful residence requirement during the qualifying period without further enquiry where they hold indefinite leave to enter or remain in the UK. This change commenced on 28 June 2022.

This change does not extend to applications to naturalise as a British overseas territory citizen.

To align with changes to the qualifying period, immigration breaches relating to lawful residence, other than illegal entry relating to applications made on or after 10 February 2025, may be disregarded when assessing good character where all of the following factors apply:

the person is applying for naturalisation as a British citizen, or registration as a British citizen under s.4(2), 6(1) or 6(2) of the BNA 1981 after 28 June 2022
that person holds indefinite leave to enter or remain (ILE or ILR, also known as settlement) in the UK
no concerns (for example, regarding the person’s character) have arisen since the grant of settlement which might cast doubt on the decision
Therefore, applications where it remains appropriate to consider immigration breaches relating to lawful residence, alongside other good character factors, may include but are not limited to:

where historic information has come to light which, had it been known at the time of granting settlement, may have led to refusal
where something occurred after the grant of settlement to indicate revocation of that status may be appropriate
applications to naturalise as a British overseas territory citizen
Immigration breaches that do not relate to lawful residence (for example working in breach of conditions, hiring illegal workers, or failure to observe reporting requirements) must still be considered.

See naturalisation as British citizen by discretion (page 51)

Overstaying
Where you are not disregarding immigration breaches relating to lawful residence, if a person has previously overstayed permission to enter or stay in the UK, it will normally be appropriate to refuse the application for citizenship, unless it is the sole adverse factor weighing against the person’s good character; and either:

the person’s application for leave to remain was made on or after 24 November 2016, and the application did not fall for refusal on the grounds of overstaying because an exception under paragraph 39E of the Immigration Rules applied
the period without leave was not the fault of the applicant, for example where it arose from a Home Office decision to refuse which is subsequently withdrawn or quashed or which the courts have required the Home Office to reconsider
For information on dealing with breaches of conditions see liability to administrative removal.

The case you outline falls under the first section I highlighted, and if in any case the overstay is the only issue against their good character, it will be ignored anyway.

[StruggleisReal]

Thank you, much appreciated!

Following on from the above, there is a section in the citizenship application where you can add more information in support of your application. Should we explain the circumstances for this overstay in this section or even in the covering letter?

Please note that they do not have any evidence such as hospital letters or a death certificate of the person who helped with the application so we cannot back our claims!

[contorted_svy]

I wouldn't say so. No inquiries will be made as your friend has settled status so I wouldn't worry about it.