This relates to the considerations for meeting the Residency Requirement for Naturalisation for applications under Section 6 of the British Nationality Act 1981 and covers the following topics:
- Residence Requirements for British Citizenship u/s 6 of British Nationality Act 1981:
- Residency Requirements u/s 6(1);
- Residency Requirements u/s 6(2).
- Considering the Residency Requirements for Naturalisation:
- Presence in the UK at the Start of the Qualifying Period;
- Absences during the Qualifying Period and in the Final Year and also Technical Absences.
Residence Requirements for British Citizenship u/s 6 of 1981 Act
In order to qualify for naturalisation as a British Citizen, an individual is required to demonstrate close links with and a commitment to the United Kingdom. As part of this, the expectation is that an applicant should meet the residency requirements.
Whilst there is some discretion to waive some of these requirements, this cannot be done to the extent that the requirements are ignored.
Residency Requirements u/s 6(1) of British Nationality Act 1981
The residency requirements for applicants, applying u/s 6(1) of the British Nationality Act 1981, are that applicant was:
- in the United Kingdom at the beginning of the period of five (5) years ending with the date of the application;
- not absent from the United Kingdom for more than either:
- 450 days in that five (5) year period; and
- 90 days in the period of twelve (12) months ending with the date of application
- on the date of application, not subject under the immigration laws to any restriction on the period of stay in the UK;
- at any other time in the twelve (12) month period ending with the date of application, not subject under the immigration laws to any restriction on his/her period of stay in the UK;
- not, at any time in the period of five (5) years ending with the date of application, in the United Kingdom in breach of the immigration laws.
There is discretion to waive the residency requirements except that the applicant must:
- have been in the UK at the beginning of the 5 year period, unless their absence was due to serving in HM forces;
- be free from time restrictions under immigration law at the time of their application.
Residence Requirements u/s 6(2) of British Nationality Act 1981
The residency requirements for applicants, applying u/s 6(2) of the British Nationality Act 1981, are that application was:
- in the United Kingdom at the beginning of the period of three (3) years ending with the date of application;
- not absent from the United Kingdom for more than either:
- 270 days in that three (3) year period;
- 90 days in the period of twelve (12) months ending with the date of application;
- on the date of the application, not subject under the immigration laws to any restriction on their period of stay in the UK;
- not, at any time in the period of three (3) years ending with the date of application in breach of immigration laws.
There is discretion to waive the residence for applications u/s 6(2) of the British Nationality Act 1981 with the exception of the requirement that the applicant is not subject under immigration law to conditions on the period of stay in the United Kingdom on the date an applicant makes his/her application
Considering the Residency Requirements for Naturalisation
In assessing whether an individual meets the residency requirements, following aspects are usually considered:
- Presence in the United Kingdom at the beginning of the qualifying period;
- Absences during the qualifying period and in the final year and also technical absences;
- Spouses/Civil partners of British citizens in Crown/designated services;
- Immigration Law:
- free from the condition on the period of time in the United Kingdom;
- any breach(es) of immigration law during the qualifying period.
Presence in the UK at the Start of the Qualifying Period
There are certain people who do not need to have been in the United Kingdom at the commencement of the five (5) year qualifying period such as:
- who are/have been a member of the UK Armed Forces;
- who are applying only on the grounds of Crown Service;
- spouses/civil partner of a British citizen in Crown/Designated Service Overseas;
- who are technically absent from the UK.
For all other applicants, it is mandatory to be physically present in the United Kingdom on the first day of the qualifying period and there is no discretion to overlook this mandatory requirement.
Legally in the UK at the Start of the Qualifying Period
To identify the start of the qualifying period the day after the application date minus the length of the qualifying period is used. For example, if an application u/s 6(1) is made on 1 Feb 2018, then an applicant needs to be legally present in the UK on 2 Feb 2013.
Allowing Applicants to Re-declare
Where the applicant fails to meet the requirement to be in the UK at the start of the qualifying period by two (2) months or less, either side of the application date, it is the discretion of the assessing officer to allow the applicant to re-declare his/her application. Where discretion is exercised, the applicant is required to re-declare his/her application, by using Doc Gen letter 4746.
Where an applicant fails to meet the requirement by more than two (2) months, the application is refused without a refund. The only exception to this could be the instance where an applicant meets all other statutory requirement but misses the requirement by a month or less, and is not able to meet the requirement by re-declaring. In such cases a refund, less the non-returnable part is usually appropriated.
Where an application is re-declared, the original application date is superseded by the date on which the re-declaration is received by HM’s Home Office. The Home Office usually ensures that an applicant is aware that he/she is required to ascertain that the new application date does not fall on a date that he/she would still not able to meet the qualifying period. Moreover, if there has been a fee change between the original application date and the date on which re-declaration is submitted then an applicant is liable to pay the fee in force at the time of the re-declaration.
The available evidence is evaluated to ascertain whether an applicant meets the residency requirements, such as:
- travel documents or original passports which have been stamped to show arrival in the United Kingdom and entry/departure from other countries. This is checked against the list of absences provided on the application form;
- records of the Home Office;
- if an applicant does not have passports to cover the qualifying period, then other evidence such as employers’ letters or tax and National Insurance letters are checked. In such cases, it is generally assessed whether there is sufficient evidence to show that an applicant has been resident in the United Kingdom during the qualifying period, and any benefit of any doubt is usually given to the applicant where claimed absences are within the limits, which are normally allowed, and there are no obvious grounds to doubt the accuracy of the claim.
Doctor’s Letter is Not Acceptable as Proof of Residence
Normally doctors’ letters are not accepted on their own as a proof of residence. However, if nothing else is available and the doctors can confirm that they have seen the applicant on a regular basis during the period concerned these may be accepted by the Home Office.
Gaps in Evidence of Continuous Residence
If there are gaps in an applicant’s evidence of residence and it is evident from the information submitted/available that an applicant could not have travelled, then it is likely to be acceptable by the Home Office. For instance, if the applicant is a refugee who has no means of travel or where immigration record confirms continuous residence.
Only Whole Days are Counted for Absences
Only whole days’ absences are counted for residency requirement from the United Kingdom. The dates of departure and arrival are not counted as absences. For instance, an individual who exit/left the United Kingdom on 12 February and returned on 13 February is not counted as absent from the United Kingdom.
Only Physical Presence is Required
An applicant only needs to have been physically present in the UK for the purpose of the act. An applicant does not need to be ordinarily resident or domiciled in the UK.
Absences During the Qualifying Period
Where an applicant has spent more than 450 days for Section 6(1) Applications, or 270 days for Section 6(2) applications, outside of the United Kingdom during the qualifying period discretion is usually exercised if an applicant has met other requirements.
Applicant Exceeding Permitted Absence by 30 Days or Less
Where the applicant exceeds the permitted absence by 30 days or less discretion is likely to be exercised unless there are other grounds on which the application falls to be refused.
480-900 and 300-540 Absences During the Qualifying Period
Where the applicant has absences of between 480-900, or 300-540 for applications u/s 6(1) and 6(2), respectively, and otherwise meets the requirements, discretion is only exercised where the applicant has established his/her home, employment, family and finances in the United Kingdom, and one or more of the following applies:
- at least 1 and 2 years residence for applications u/s 6(2) and 6(1), respectively, without substantial absences immediately prior to the beginning of the qualifying period. If the period of absence is greater than 730 days for an application u/s 6(1) or 450 days, for an application u/s 6(2), the period of residence must be at least 3 or 2 years, respectively;
- the excess absences are the result of:
- postings abroad in Crown service under the United Kingdom government or in service designated u/s 2(3) of the British Nationality act 1981;
- accompanying a British citizen spouse or civil partner on an appointment overseas;
- the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a multinational company based in the UK with frequent travel abroad;
- exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement.
Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be exercised and an application is usually refused with an advise to re-apply when the applicant will be able to bring himself/herself with the statutory requirements unless there are specific circumstances that warrant exceptional consideration at a senior level.
Absences in the Final Year
Discretion is only exercised for excessive absences during the final year of the qualifying period u/s 6(1) if the future intentions requirement is met by the applicant.
Where an applicant is applying u/s 6(2) or has met the future intentions requirement then discretion may be exercised:
- If total absences are 100 days or less then discretion is likely to be exercised;
- If total absences are between 100 and 180 days, where the residence requirement across the qualifying period is met – discretion is only likely to be exercised where the applicant demonstrates strong links through the presence of family, employment and their home in the United Kingdom;
- If total absences are more than 100 days but not more than 180 days and where the residence requirements over the full qualifying period are not met– the use of discretion may only be considered if both the following apply:
- an applicant has demonstrated that he/she has made the UK this/her home by establishing a home, employment family, property and finances in the UK;
- the absence is justified by Crown service or by compelling occupational or compassionate reasons;
- If total absences exceed 180 days and where the residence requirements over the full qualifying period are met – discretion is exercised if the applicant has demonstrated that he/she has made the UK his/her home;
- If total absences exceed 180 days and where the residence requirements over the full qualifying period are not met – discretion is only likely to be exercised where the applicant has demonstrated that he/she has made the UK his/her home and there are exceptional circumstances.
Treatment of Technical Absences
Technical absence is where a person is regarded as absent from the UK even though they are physically present here. This is where an applicant is:
- exempt from immigration control u/s 8(3) of the Immigration Act 1971 – diplomats;
- exempt from immigration control u/s 8(4) of the Immigration Act 1971 – members of home, Commonwealth or visiting forces;
- detained in hospital or other places of detention or unlawfully at large in the UK following a conviction for an offence;
- detained, or on temporary admission, or unlawfully at large under the immigration laws.
The following are not technically absent from the United Kingdom:
- locally engaged non-diplomatic member of a foreign mission;
- individuals exempt from immigration control u/s 8(2) of the Immigration Act 1971 – consular staff and certain employees of international organisations.
Treatment of Technical Absence for Naturalisation Purpose
There is discretion under paragraphs 2(b) and 4 of Schedule 1 to the British Nationality Act 1981 to treat:
- technical absences as a residence for naturalisation purposes;
- an applicant as present here on the date at the start of the qualifying period if it comes within the period of technical absence
Related: Requirements to Naturalise as a British Citizen u/s 6 of 1981 Act, Types of British Citizenship, Naturalisation and Registration Grants and How Can Immigration Solicitors Help Challenge a UK Visa Refusal Decision?