Chapter 18 Annex B paragraph 7.5(g) of the BNA 1981

[Ged]

The UK immigration law does not need to define what protracted means, as there are dictionaries for that. Protracted means prolonged. There is nothing to it. Check any dictionary.

"Discretion to disregard immigration time restrictions in the final 12 months may normally be exercised if:...consideration of an application for indefinite leave to remain, made more than 15 months before the citizenship application, had been protracted through no fault of the applicant, providing ILR was eventually granted..."

This implicates 3 months is the reasonable duration by UK immigration law in which an ILR should be resolved. BNA 1981 is not some internal memo from the late Borders Agency or Home Office. It is the UK law. It cannot be ignored or it cannot be changed without a parliament decision. It is not too much to expect fair treatment although I know I am relying on the discretion by some unknown caseworker.

By the way, I wouldn't want to be disrespectful to an otherwise very helpful forum but in my humble opinion, demoting many helpful people such as Domanisshallo or any similar members who worked hard to help strangers in order to honor "more respected gurus" appear as tacky as such titles go. It was clearly not very well thought after.

[Amber]

If you do not understand the importance of defining words in statutes in the English Legal system then you do not understand the English Legal system at all. There are a number of different ways the courts can interpret words, your 'literal' approach may not be the correct one. Moreover, naturalisation applications are not immigration law, they are Nationality, which is in itself based on discretion.

If you have any comments regarding the ranking system please make them here, in the appropriate thread. I will move what you have said to that thread.

[Ged]

Dear Amber,

We will know more when we start seeing some resolved cases. In the mean time, it is only natural to assume protracted means prolonged. There is no evidence or substantial reason to assume it any other way due to some people second guessing UK law.

However we do have freedom of information requests such as this one:

https://www.whatdotheyknow.com/request/ ... etionary_p

In this example the caseworker explains how the discretion applies under Paragraph 7.5g,

"For our purposes, we would consider delays in dealing with any ILR application in the same way, irrespective of the section of the Rules that a person was applying for ILR under.

In general terms, we would expect to exercise discretion where the delay was due to failings on UKBA’s part. Examples of this might be where there had been delays in dealing with the case due to an increased volume of applications, or the file being with another part of UKBA. If, however, the delays were due to the applicant not responding to correspondence, or sending incorrect documentation which resulted in further enquiries, we would not exercise discretion on this basis."

This answer is signed by "Jane Whitehead (Ms) Nationality Policy Team"

I would say this answer could not have been any clearer. If you can, I would appreciate it very much, if you clarify your 'metaphoric approach' to BNA 1981, using specific examples or legal clauses, but without second guessing rather specific clauses of law.

About the ranking system, I already made my views clear. I wouldn't have written it here if you had not announced it here.

[Amber]

I understand what you are saying but I would expect that where an ILR took <6 months to be decided, 7.5(g) discretion would not be allowed.

Regarding the rank, I did not announce it here, I gave a link to where it was announced (click) and have put your comment and a response in that post.

I draw your attention to:

I got this reply today from:

NationalityPolicyTeam.Liverpool@homeoffice.gsi.gov.uk

Thank you for your further enquiry regarding the requirements for naturalisation as a British citizen under section 6(1) of the British Nationality Act 1981. You specifically refer to the requirement to have been free of immigration time restrictions on the date of application and for the preceding 12 month period.
As previously explained, the Secretary of State does have the discretion to disregard immigration time restrictions in the final 12 months if, consideration of an application for indefinite leave to remain, made more than 15 months before the citizenship application, had been protracted through no fault of the applicant, providing ILR was eventually granted. This policy is covered in Chapter 18 Annex B paragraph 7.5 (g) of the Nationality guidance.
Our service standards, as detailed on our website, states that 95% of postal settlement applications will be decided within six months. Applicants therefore have a legitimate expectation that their application will take 6 months to decide.

http://www.ukba.homeoffice.gov.uk/visas ... tingtimes/
Applications that take longer than this, where the delay was outside of the persons control, will normally be considered under Chapter 18 Annex B paragraph 7.5 (g) when an application for British citizenship is made. However, as detailed in my previous correspondence to you, neither of your applications for Indefinite Leave to Remain can be considered to have been protracted, as referred to in Chapter 18 Annex B paragraph 7.5(g) of the nationality guidance. Both of your ILR applications were considered in accordance with the Immigration Rules and the appropriate decisions were reached by the deciding officer. The fact that discretion was exercised in your second application does not indicate that the first decision was incorrect in any way.
In conclusion, when applying for British citizenship under section 6(1) of the 1981 Act you must ensure that you can fulfil the requirement to have been free of immigration time restrictions for 12 months beforehand. An application received before 7 February 2014 is therefore unlikely to be successful.

Regards

Mrs C R

My application took 7 months and 12 days.....!!!!!!!!!

Seems like they have decided not to approve my BC application before 7 Feb 2014.

I am in a dilemma.........

[John]

I find this very unsatisfactory as regards what UKBA is doing here. I think the wording of 7.5.g is pretty clear and if they really do not mean to have a reference to 15 months in that, but instead really mean to have a reference to 18 months, then they really do need to change the guidance they give to their staff in 7.5.g.

[Ged]

I find this very unsatisfactory as regards what UKBA is doing here. I think the wording of 7.5.g is pretty clear and if they really do not mean to have a reference to 15 months in that, but instead really mean to have a reference to 18 months, then they really do need to change the guidance they give to their staff in 7.5.g.

Dear John,
I agree that the wording is clear. Besides if 7.5.g is a part of a legal act (BNA 1981), then the late UKBA service standard of dealing with applications within 6 months is clearly in conflict with it. The act implies anything longer than 3 months qualifies for 7.5.g (hence 15 months). If we take 6 months as the reasonable waiting threshold, it would imply18 months of waiting duration is required which conflicts with BNA 1981, 7.5.g. This shows the service standard itself is arbitrary and arguably, illegal.

Dear Amber,
My ILR application was dealt with within almost 8 months, so was Domanisshallo's. Spidery_thread also waited a lot to get his ILR. We were all in 10 years lawful residence category. Clearly, most people applied for ILR after 2012 summer suffered similar unreasonable waiting times. Because we waited so long, our wife's, husbands, children and any other dependents we had also ended up waiting unreasonably long since they could not apply at the same time with us. Total losses we have suffered in terms of freedom of travel easily exceeds a year of human life per family. Please note that these waiting times all exceed 6 months anyway. However, even 6 months long service standard looks arbitrary.

I would not discourage people from applying under 7.5.g, unless, someone gets rejected (although the delay in ILR was not their own fault). If such a rejection happens, a massive error and injustice will have occurred. Applicants however, must make sure that the delay in ILR was not their own fault in the first place.

[sunny0183]

I received a letter from Home Office 2 weeks after my ILR grant. It was an reply to my complaint about my ILR application taking more then 8 months to decide. It clearly states that the delay in concluding my application was because of the unusually high volume of applications which had an impact on the processing time. Below is the exact wording

Dear X

Thank you for your email correspondence of XX/XX/2012 to the Home Secretary about the delay in the process of your application for ILR in the UK. Your correspondence has been passed on to me to reply.

I am sorry for the delay in concluding application. We have received unusually high volume of applications which has had an impact on processing times. We are working through a queue of complex cases and we expect to be delivering an improved service in the next few days.


So i am planning to apply through NCS with a copy of this letter.

[Damanisshallo]

Hi All,

i was granted ILR(10 years basis) back in april, although i submitted my application for iLR on the 25th of Sep 2012. Hence according to 15 months rule i can apply for British Citizenship on on 25th of Dec.

is Anybody dealt with similar sort of situation before on this forum ?

you helps on this is much appreciated !!!!

Good luck to those who have applied

[Ged]

Dear members;

I have sent an email to the
NationalityEnquiries@ukba.gsi.gov.uk

After a number of useless copy paste answers which do not answer a single question, thankfully, the following answer also came from a different address;
It is not the strongest confirmation in the world, but this is the response to the question I asked:

Dear Sir,
I can confirm that in accordance with the Nationality staff instructions, discretion to disregard immigration time restrictions would be applied in a case such as outlined below.

Kind regards

(Name of the respondent) | Nationality Operational Policy| Operational Policy & Rules Unit|Immigration and Border Policy Directorate | Home Office


This is the question I had asked;

Dear Nationality Policy Team Member;

I have applied for my ILR last year on 04/09/2012 and received it early in April dated 02/04/2013. As the process took much longer than the published service standards, I inquired the fate of my application through my MP and received the response from the UK Border Agency. Their response indicated that my application was being delayed due to higher than usual work load they had.

Chapter 18 of the Annex B, Paragraph 7.5(g) of BNA 1981 says the following;

"Discretion to disregard immigration time restrictions in the final 12 months may normally be exercised if:...consideration of an application for indefinite leave to remain, made more than 15 months before the citizenship application, had been protracted through no fault of the applicant, providing ILR was eventually granted..."

Since the delays during the processing of my ILR application was verified as not my own fault and by 4th of December 2013, it will be 15 months after my ILR application, I intend to apply for naturalisation as a British citizen by 4th of December.

I am of good character. I have been serving and contributing to the UK as a full time academic for years. The time I lost during the ILR application was unfair and the delays in my naturalisation is adversely affecting my career, holidays and my family. Therefore it is very important for me to gain my citizenship as early as possible.

Can you please confirm that my logic and interpretation of the Annex B, Paragraph 7.5(g) of BNA 1981 is fair, and therefore I can apply for naturalisation on 04/12/2013?


This answer seems to mean that if you are absolutely confident that the delays in your ILR process were not your own fault, and everything else is also favorable, they will disregard the 12 months rule using their discretion.

Make your own decision.

[adkh2_1]

i am in your shoes too... applied on 25/09/12.... and got iLR on 25/4/12.... again no fault of mine, as i didn't get any query or anything. simple delay by UKBA...

I am very tempted to apply at the end of this month.. when my 15 months are up...

[John]

I can confirm that in accordance with the Nationality staff instructions, discretion to disregard immigration time restrictions would be applied in a case such as outlined below.

Seems pretty clear to me. Plus, whilst UKBA do have a discretion, they need to use their discretion fairly and consistently, and in my opinion the staff instructions quoted above are unambiguous.

If UKBA wanted to change their staff instructions, well they have every right to do so, but they have failed to make any change. That is, if they wanted to refer to 18 months instead of 15 months, they could change to that, but they have not done so.

[adkh2_1]

so what you saying applying under 15 months rule is risky or worth a try

[Aryan2013]

Hi BCMN1,

Any news on your application?

Cheers!

Thanks Spidery_thread,

Actually I did apply via postal route yesterday, with certified copies of my passports.

Lets see what will be the outcome?

Many Thanks

[Aryan2013]

Hi Damanisshallo,

Hope you must have received the response by now. Will you be kind enough to share with us the outcome and the email add of UKVI from the response team.

Cheers!

I've received a letter from the newly formed UK Visas & Immigration apologizing for the delay caused in dealing with my complaint (Not application) lodged with them after waiting for more than 7 1/2 months and confirming that they've looked into my complaint lately and learnt that I've now been issued with an ILR and that they are closing my complaint apparently.

My next step will be, to write to them attaching this letter (which I've received) asking them to confirm whether the delay in dealing with my application was caused purely due to the overwhelming applications they've received and not of my fault.

I'm hoping to get a response (If at all I get one) within the next 2 months so that I can use this against my Naturalisation Application under Para 7.5g


Out of context, what is Diamond Member means??????

[BCMN1]

Reply.jpg (189.01 KiB) Viewed 2069 times

Hi BCMN1,

Any news on your application?

Cheers!

Respected Fellow Members,

I am still waiting to hear from the Nationality Directorate about the outcome on my application.

Section 7.5g, looks like a myth to me now, as I already completed 12 months on 7th Feb 2014 on my ILR, if I had received the approval before that date then it would have been confirmed that 7.5g is in operation.

I made a complaint on 3 Dec 2013(complaint will follow reply from UKV&I):

To,
The Chief Caseworker,
Nationality Directorate
Liverpool

Dear Sirs/Madam,

I am writing in relation to my application for Naturalisation which was made on 24 Oct 2013 by Royal Mail Special Delivery No. **GB delivered at your office on 25 Oct 2013.

I am well aware of the fact that as per Royal Mail's website it is delivered to your office however its been more than 5 weeks since this application was made and I am yet to receive an acknowledgement from UKBA and the application fee is also not debited from my credit card account.

I would like to draw your attention to the immigration rules change period of 9 July 2012. Where a very large number of applications were made; 3926 SET(O) applications only and yet I received my ILR application acknowledgement within 5 working days of making the application.

I would also want you to be in my shoes and feel that its very frustrating for an applicant to first surrender the passport for more than 7 months for ILR application with UKBA in one year through another and then again has to wait for 6 months to get a decision on Naturalisation application!

Although I totally understand that UKBA needs to fulfill its responsibility to make correct decisions for a high volume service to quality decisions. But the amount of time taken to reach these decisions beyond imagination.

UKBA Visa & Nationality fee is one of the highest in the world, approx 66% over and above the cost of application and yet delays are quite common.

I therefore request you to kindly look into this matter generally and place a contingency plan to reduce these delays and make the application process digital and online traceable by the applicants(atleast for your own department).

I'll highly appreciate your response in this matter".

Reply(4 Dec 13):

Thank you for your email.

You should receive an acknowledgment letter between 4-6 weeks after we received your application. During busy periods this may even take 7 weeks as payment will take longer to clear. It is quite likely your application is queued still awaiting payment to clear.

I am sorry that you find it necessary to complain about the service offered by the Home Office. We aim to provide a first class service.

You may also wish to consult our website for more information on our complain procedure:

http://www.ukba.homeoffice.gov.uk/about ... complaint/

Your complaint will be managed by one of our customer service units (CSUs). They are responsible for ensuring that your complaint is resolved in a satisfactory and timely manner. We will send you an acknowledgement, telling you which CSU is dealing with your complaint.

We aim to give a full response within 20 working days. If your complaint alleges serious professional misconduct by our staff or people working for us, it may take up to 12 weeks for a detailed, independent investigation to be completed. We may contact you during an investigation for further information.

Kind Regards, Customer Service Advisor.

2nd Complaint 30 Jan 2014:

Thank you for your email. I did receive my acknowledgement letter on 23 Dec 2013.

However its been more than 3 months since I have applied for Naturalization and yet to receive a decision on my application.

I would like to draw your attention towards an online Immigration forum: http://www.immigrationsboards.com

Where some of the applicants have posted their time line for the Naturalisation Applications: e.g:

Date of Application: 1/11/2013
Date of receipt by UKBA: 05/11/2013
Date of receipt of acknowledgement letter : 15/01/09
Date of approval: 15/01/2014
Date of receipt of approval: 22/01/2014

Standard requirements remains the same (except spouse of BC) for all the applicants; so if the above applicant received their approval letter who has applied 1 week after my application and was approved 2 weeks ago, Why my application is taking longer and is not dealt within the above time frame.

At one place your website says: "You should think very carefully before applying if you require your passport within the next three months".

and on the same page: "Our service standards set out how quickly we aim to decide applications for British citizenship. The standard is that we will decide 95% of applications within six months".

Which gives a false sense of idea that an application will be decided within 3 months.

Since Feb 2012 when the service standard for all Immigration applications were changed from 4-14 weeks to 6 months; UKBA's time standard of dealing with applications has drastically declined.

From 2-4 weeks average turnaround time it went above 6 months.
Here are the facts:
All my extensions from Nov 2002 until Oct 2008 took an average of 3 weeks.
My Tier 1 PSW Application took 9 months and 17 days to decide!
MY ILR Application took 7 months and 12 days to decide(which made me eligible to apply for Naturalisation under section 7.5g)

Now its been more than 3 months towards my Naturalisation application.

I therefore request you kindly allocate my application to a case worker and provide me with an actual update on my application.

Sincerely,

Reply(3 Feb 14):

Thank you for your email.

I have checked our records and can confirm that no decision has yet been made on your application.

All applications for citizenship are subject to enquiries to ensure that the statutory requirements have been satisfied. Because of these enquiries, we anticipate that applications may take up to six months to complete. Some applications may be dealt with more quickly and some may take longer, depending on the nature of the enquiries to be carried out. Our service standards set out how quickly we aim to decide applications for British citizenship. The standard is that we will decide 95% of applications within six months.

When the decision is made, or if we require further information from you, we will contact you in writing.

Please ensure you notify us promptly if you change your address. Your address can be updated here:
http://www.ukba.homeoffice.gov.uk/about ... y-details/

If you require any documents back, these can be requested here: http://www.ukba.homeoffice.gov.uk/about ... documents/. Requesting documents will not negatively impact on the application.

Kind Regards

Customer Service Advisor

3rd Complaint 14 Feb 2014

I wish to make a formal complaint against the length of time it has been taken to decide Naturalisation Application which is pending with Nationality Directorate for almost over 3 1/2 months.

From the period of 25 Oct 2013 to till date, no decision has been taken on my application; so where is my application?

As per you service standard!!!! which states,"that we will decide 95% of applications within six months".

Why decision on my applications are made near and beyond 6 months mark rather than the beginning or middle of 6 months like other applicants?

I am well aware of an application which was decided in 6 weeks rather than six months. What checks you need to make which cannot be carried out in 6 weeks and need 6 months to complete?

When Home Office brought the new policy of English test require for Naturalisation application; did the staff fail to forecast the number of application Nationality Department will receive and no extra staff was deployed for this massive flock of application?

If I may remind you of 9 July 2012 rules and refer you to a FOI request No. 25651

"time taken to complete a specific SET O application will depend which route of
settlement is being applied for on the application form, a small number of applications are
currently extending beyond the 6 month target however a plan is in place to bring all routes
back within service standard".

Where is this plan? Was there no similar plan placed for Naturalisation Applications to improve the standard from 6 months to a lesser time?

If you put your self in my shoes, you'll imagine how frustrating it is for me to wait unnecessarily for my Nationality Application where in the past I waited 1 year 4 months and 24 days just for 2 applications?

Reply(20 Feb 14, by post, attached on top of this page)

I called the dedicated Nationality Team a week after this reply and they confirmed that my application is not with the case worker.

So if it is not with the case worker, who is doing character checks?????

I called on 11 March 14 to speak to the same team again, and I was advised by 0300 staff that my case has been allocated to a case worker...!!!!

Got a call back yesterday from the Nationality Team and very rude lady(like I am wasting her time by making her call me..hang on, I have paid £874.00). She confirmed once again that my application is not allocated yet.......!!!!! I am guessing laying around some where in a store room like my ILR application.

I am so frustrated. Dear members some one has to make a stand to this absurd time frames and lies, I am doing whatever is in my capacity but if it comes to a point then this thing has to go public I mean media. UKV&I and the Home Secretary must be named and shamed for saying they are providing first class service.

I'll appreciate any further comments and advise.

[Ged]

As far as I know, this is the common order of things;

-They receive your application,
-Someone vets it initially,
-An acknowledgement letter is written, your case is assigned to a caseworker and the money gets taken (All in one step, this is a very important milestone)
-You wait until a decision is reached by this caseworker (this generally takes 1-1.5 months).

If they took the money and sent the acknowledgement letter already, this should normally mean, they assigned a caseworker. I am surprised that they keep telling you "they did not assign a caseworker yet".

There is no way I can be sure, but I believe, you probably do have a caseworker.

[BCMN1]

Hi Ged,

One thing I came across and that lady told me yesterday that 'Nationality Character Checks' are done before its allocated to a case worker....!!!!

If this is the case what does a caseworker do then?

Rest is 2+2.

[Ged]

Hi Ged,

One thing I came across and that lady told me yesterday that 'Nationality Character Checks' are done before its allocated to a case worker....!!!!

If this is the case what does a caseworker do then?

Rest is 2+2.

I do not know.

But one thing is consistent: once a caseworker is allocated, it is generally a straight forward work which takes an (almost) standard amount of time. This makes me think that the initial vetting process is what causes the diversity of the durations it takes to complete the whole process. There seems to be many factors which influence the total length of time it will take: This includes the complexity of your application and how busy they are when you made the application. There appears to be no obvious order of "first come-first served basis" until a caseworker is assigned. Think about the time they took the money from your account. This is about the same time when they sent you an acknowledgement letter. You should be getting a result (very roughly) within 2 months of that time. Because it seems to take this long for whatever a caseworker does about a case.

I cannot explain why, if this did not happen. However, this is what I would normally expect. Can you tell me the date of your acknowledgement letter and the date the fee was taken?

[BCMN1]

Date of Ack Letter: 19-12-2013
Date of Fee Debt: 19-12-2013

[BCMN1]

My ILR application was in storage for a total of 7 months and 4 days, total time taken to reach decision was 7 months and 7 days.

3 days to decide by the caseworker.

[Ged]

Date of Ack Letter: 19-12-2013
Date of Fee Debt: 19-12-2013

This does look annoying.
Can you think of any reason why your "good character checks" would be difficult for them to resolve? Do you have any convictions? Did you have any issues with the taxman? Is there any anomaly in your application other than the fact that you applied early using 7.5(g)?

[BCMN1]

I had Police caution in 2003 which I did mention in my application, always paid my taxes. Clean driving licence, no CCJ, no penalty ticket issues.

[Ged]

I had Police caution in 2003 which I did mention in my application, always paid my taxes. Clean driving licence, no CCJ, no penalty ticket issues.

I think you should calmly wait without getting paranoid. This must be what is causing the delay. Many people took their citizenship with spent convictions. I do not know the nature of that caution or how serious the offense was. However, I do know a Christmas holiday and a serious backlog to clear entered to the equation. Give it 2 more weeks before you start writing more angry letters. If they thought your application was inappropriate, you would have received your rejection already. I believe you should calmly wait a little longer, without making your own life harder.

It is up to you. You know that I am just making a guess work here.

[BCMN1]

I'll wait until 25 April which makes it exact 6 months before writing for further update. Caution was for a fight, no further action was taken by the police. It was a verbal warning by the Police as far as I can remember.

[Aryan2013]

Guys thanks for the update.

I was going through timelines and I came across this, which I have copied and pasted below. It seems that 7.5g is a hit/miss case as with other things with UKVI. It depends on your luck/caseworker, I guess.

Ged, have you already applied using 7.5g?

Postby tchy » Wed Mar 12, 2014 2:22 am
Application Timeline :
Eligibility criteria: 5 Years HSMP & Tier1 + 8 Months ILR (Chapter 18, 7.5 (g) discretion used due to ILR application delayed 7+ months)
Language criteria: Life in the UK test + B1 from Trinity
Method of application: Post RM Special (Joint application 2 AN + 1 MN1)
Date of application: 14/01/2014
Date of receipt by UKBA: 15/01/2014 (RM Tracking)
Method of payment: Cheque
Date of debit of fees: 03/02/2014
Date of receipt of acknowledgement: 29/01/2014 (dated 28/01/2014)
Date of receipt of approval: 11/03/2014 (dated 07/03/2014)
Date of Ceremony: Waiting...