Please advice if I am eligible to apply forNaturalisation under section 6(1) or 6(2)

[Meghaj]

Dear Immigration board members,
Please could you advice me on if I am still eligible to apply for BC(British Citizen)/Naturalisation under section6(1)application based on 5year residency qualifying period considering the fact that I am the spouse/wife of BC but I wouldn’t be able to apply under section6(2)application based on concessional 3year residency qualifying period as I have exceeded the maximum permissible number of absences which is no more than 270days in last 3years.
My current situation is detailed as below.
1) My husband and my son both hold British passport.
2) I am on Settlement visa/ILR since Jan 2011.
3) We own a home in England since Aug 2011.
4) Since 10th April 2013 to 8th April 2017 I have lived in UK continuously with my family with no absences. We moved to India last year on 9th April 2017 due to my MIL’s ill health and are staying here currently.
5) My husband has decided to stay back in India for a year or two to look after his aged parents and to take care of their businesses,however he has all intentions of returning back to UK once things settle down.
6) But my 8year old son who was born and bought up in UK wants to go back to UK as he is finding it hard with schooling in India.
7) In the interest of my son if I go back to UK with him and live in the UK for a year,can I then apply for Naturalisation under section6(1) of 5year residency requirement?- I mean after a year of my stay in UK by fulfilling the conditions of 5 year residency requirements which is no more than 450days of holidays in last 5years and no more than 90days in last year considering the fact that “I am the spouse/wife of British citizen.” But I cannot apply on the basis of 3year residency requirement of section 6(2)-spouse of BC as I have exceeded the maximum permissible no. Of absences which is no more than 270days in last 3years(I will have 365days of absences from 9th april 2017 to 10th april 2018 as i am planning to return back to UK in April first week once my son finishes his acedamic year in India).
Please advice me if I am ONLY required to apply under Spouse of British citizen Section6(2) of 3year residency requirement rule or Am I STILL eligible to apply under Normal application of section6(1) of 5year residency requirement rule irrespective of my husband being British and not living in the UK with me for next one year.
9) If I am eligible to apply under 5year residency rule, what explanations should I make in my application as to why am I applying under section 6(1) and not under section 6(2) of spouse of BC.Will they raise any query on this matter and are their any chances of rejection on this basis.
10) My presence and absence from UK in last 5 years are as below.
a) From 9th April 2017 to 15th April 2018(absent from UK) I intend to stay in India and then return back to UK and live in UK for a year(from 16th april 2018 to 16th april 2019) without any absences from UK to fulfill the requirement of no more than 90days absence in last one year.
b) From 10th April 2013 to 8th April 2017 I have lived in UK continuesly without any absences outside of UK.
c) So I have stayed in UK for 4years from 10th April 2013 to 8th April 2017.
I will have absences from 9th April 2017 till 10th April 2018 for a year.
I intend to live in UK from 11th April 2018 till 11th April 2019 for a year with no absences.
Looking at my above scenario, Please advice me if I am still in good shape to apply for BC after a year of wait in UK.
I would be most grateful for all the valuable information and advice.
Thank you

[sgurr_nan_gillean]

Hi. I see you're not getting many replies. Based on what you said, my feeling is that you have lost your residency after 90 days absence. This in turn means you wouldn't be able to apply for citizenship, as your time in the UK is counted all over again, even though you were never planning on moving away permanently. This has happened to me after leaving the country for 9 months (it was also for family emergency). You may wish to consult a lawyer or immigration advisor to see if you could claim exceptional circumstances.

[CR001]

Hi. I see you're not getting many replies. Based on what you said, my feeling is that you have lost your residency after 90 days absence. This in turn means you wouldn't be able to apply for citizenship, as your time in the UK is counted all over again, even though you were never planning on moving away permanently. This has happened to me after leaving the country for 9 months (it was also for family emergency). You may wish to consult a lawyer or immigration advisor to see if you could claim exceptional circumstances.

Where exactly does it state this??? The poster in this topic came under the UK Immigration rules and not the EU rules.

[Meghaj]

Thank you for your replies.
I could not get clear understanding from the replies.
Please could anyone put more light on this topic as I am very much confused. Does it mean I have lost the chance of applying for Naturalisation even after a year of stay in the UK from now on? By doing so, I can prove that I lived continuesly in UK for last 4years from 2013 to 2017 April and I am absent from UK from 2017April to 2018 April which will count towards 365days of absences and then from 2018 April to 2019April I will live in UK for a year again. So in total from April 2013 to April 2019(6years) I will have 365 days of absence and my stay in UK for next one year will also fulfill the requirements of no more than 90days ansence in last 12months. My only concern is I am the spouse of British citizen but I cannot apply on 3year route-spouse of British cotizen as I have exceeded the absence limit for the residence requirement on this ground, so want to lnow if I can apply on 5year residence requirement even though I am the spouse of BC. My husband may or maynot come back to UK in future but for my Son’s future I would like to go back and live in UK.
I would be truely grateful if someone can provide valuable information on my case as it will help le to take important decision in my life. If I have no chances of applying for BC after a year of stay then I will have to rethink about my plans as I have to choose between my family and my Son’s future.
Kindly advice me about my chances of applying for BC. I am currently unemployed and approaching a solicitor is out of my pocket at the moment.
All advice and suggestions would benof great help.
Thank you

[vinny]

I think that it's your choice under what section you make the application. But if under 6(1), then you must also satisfy the future intentions requirements, etc.

[Meghaj]

Thanks Vinny for your reply. Very much appreciated!!
Please could you let me know on what basis can I show my intentions of future stay in UK. We have a home in UK. I will find a job(although not a professional job but just a retail job), my son will be studying in Uk. Please can you advice me about how to prove/show my intensions to home office.
I am glad to know i can still apply on my own on 5year residence qualifying period.
Please can i have some more information on what important things should i consider before making my application.
Thank you

[Meghaj]

Dear Immigration board members,

Please could you kindly advice me if I will be eligible to apply for Naturalisation after an year. I will briefly explain my current scenario.
I am on ILR since Jan 2011.
My husband and my son are now British Citizen.
I would like to apply for British Citizenship but I assume my application is not straight forward as my absences are greater than the normal permitted numbers(no more than 270days) to apply under section 6(2) Spouse of British Citizen. Please advice me on how good are my chances of applying for British Citizenship under section 6(2) where discreation may be applied, as we have a home in UK and my family(husband and son) are British and I meet all other requirements and lived in UK since april 2013 without any holidays up until April 2017. Under excess absences, the above criteria should be met to consider discretion.
My current circumstances are
1) I have been granted ILR since Jan 2011 along with my husband.
2) I had few holidays every now and then since Jan 2011 to visit my family along with my newborn.
3) Since, April 2013 until April 2017 I never been out of the country(UK)
4)But on 9th of April 2017 we travelled to India to take care of my mother in law who was very unwell and underwent surgery.
My husband still intends to live here/India for a year or two to take care of his aged mother.
5)But, I will be returning back to UK on 5th of May 2018 for good.
6) So, in brief, my absences are from 9th April 2017 to 5th May 2018(400days approximately). I have NO absences from April 10th 2013 to 9th April 2017.
7) Will I be still eligible to apply for British Citizenship under section 6(2) of spouse of British citizen in the hope that discretion will be applied.
OR
Will I be eligible to apply under section 6(1) of “ those not married to British citizen” as I meet the absence requirements here. Or am I not eligible to apply under section 6(1) as i am the spouse of British citizen.
I am aware that i shoild not have more than 90days holidays in last one year which I will certainly meet by living in UK for next one year.
After looking into my current scenario, please could you advice me if I am eligible to apply for British Citizenship and if yes, should I apply under section 6(1) or section 6(2)? I would be most grateful for all the advices and suggestions.
Many thanks for your precious time.

[CR001]

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[vinny]

Your son will probably want to stay in the UK for longer than three years. It may be unrealistic for you to return to India in May 2018 for good. If your intention is to return to India for good, then you would fail the future intentions requirement if you apply under Section 6(1).

If you return without naturalising and are absent for longer than two years, then your ILR may be lost.

Probably simplest to wait until you satisfy the requirements of Section 6(2), then apply.