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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7591
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Hello, My wife and I have been living in the UK on settlement

Resolved Question:

Hello,
My wife and I have been living in the UK on settlement VISA since Feb 2006 - we are both Algerian citizens. I never thought about applying for British citizenship at that time which we could a year later on Feb 2007; until now. We have two girls (both are British citizens), a third is on his/her way and we are seriously now thinking about applying for citizenship. The matter is that I had a previous driving without insurance conviction in Apr 2007 for which I was fined £250 and had 6 points on my license and then we left the UK in Oct 2010 to work abroad for about 2 years and a half year. My questions are:
Will we be able to apply for citizenship on the basis that we have been in the UK on a settlement VISA (free from immigration control as I understand it) for more than 8 years albeit we have been away for more than 730 days;
We are now thinking about buying a house, will this help showing that we established our home/estate here in the UK (we both have nothing 'substantial' in Algeria)
will my previous IN10 conviction impact our application although it happened 7 years ago?
How do we know the length of our stay in the UK ?
BR
Omar
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Thomas replied 2 years ago.
Hi,
Thanks for your question.
Do you hold indefinite leave to remain?
As to driving without insurance, did you receive a fixed penalty notice for this which you paid without defending the matter at court?
Kind regards,
Tom
Customer: replied 2 years ago.

Hello Tom,

Regarding the indefinite leave to remain (ILR); this is what I meant by settlement VISA which we've been having since 22 Feb 2006 (both my wife and I).

For the fixed penalty notice, the policemen who stopped me mentioned that I will hear from the court, which I didn't; I only heard about the fine when I received their letter from the court with details of the fine. When I called them I was told that I may make an appeal; so I do not know if I was supposed to appear before the magistrate or not and frankly I never thought about the matter until I was reading criteria for applying for citizenship. If it matters I can dig further.

BR

Omar

Expert:  Thomas replied 2 years ago.
Hi Omar
Sorry, are saying that you did receive a fixed penalty notice?
Kind regards
Tom
Expert:  Thomas replied 2 years ago.
Hi
Thank you for your question and patience, I’m Tom and I’ll try to help you.
As to the time you have spent outside the UK, if you have been absent for more than 730 days then they would normally expect you to have been resident in the UK for 8 years before you make your application unless the absences were a result of an unavoidable consequence of the nature of your work.
This means that the only way that you would be eligible to meet the residence requirements right now would be if your absence in 2010 for two years was as a result of your work. Note that this means that your work before you left must have required you to leave. If this is the case and you are able to prove it then you might be able to argue around the absences in this way.
However, if the work for which you were absent was completely new employment then this is not “unavoidable” because you could have remained in the UK working in whatever role you had. If this was the case you could not apply arguing that it was an unavoidable consequence of your work.
As to the conviction, if you are certain that you received a fixed penalty notice and you simply paid then fine without attending court and entering a not guilty plea then this would not prevent you from applying unless you have multiple FPNs. However, if you defended the notice at court, lost and then paid the fine then it would be on your criminal record and it would prevent you from applying only if it was receive less than 3 years ago. So because you received it more than 7 years ago then it would not be an issue.
The fact that you may buy a house will not significantly improve your residence eligbility for naturalisation purposes.
My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.
Kind regards,
Tom
Customer: replied 2 years ago.

Hello Tom,

Thank you for your reply. I’m not sure I fully understand the Home Office requirements for somebody with an ILR for longer than 8 years. Quoting the HO naturalisation booklet (table in page 7): “…For absences exceeding 730 days we would expect you to have been resident in the UK for the last 8 years unless the absences were a result of one of the reasons detailed in section 5A1 below…”.

Section 5A1 stipulates:

“For absences exceeding 730 days we would expect you to have been resident in the UK for the last 8 years unless the absences were a result of either:

•a posting abroad in Crown or designated service etc;

•an unavoidable consequence of the nature of your work etc or

•exceptional or compelling reasons of an occupational or compassionate nature etc.

Obviously I do not fulfil these three points; however (which is my initial question really), such points refer to an applicant who has been living in the UK for less than 8 years and has been away for more than 730 days!They are not applicable in my case.

My understanding here is that I have been in the UK for longer than 8 years and has spent more than 730 days (perhaps less than 900 days) abroad. And referring gain to the table in page 7, I may have to show that I meet all other requirements (good conduct included; and that I have established my family, home and estate in the UK; in such case, buying a house here may be of some help? What do you think?

BR

Omar

Expert:  Thomas replied 2 years ago.
Hi Omar,
I will be able to reply at 9 tomorrow morning.
Tom
Expert:  Thomas replied 2 years ago.
Hi,
As you absences exceed 730 days (but less than 900), you have to show that at least some of the days should be discounted because of one of the three reasons that you have cited.
If you cannot show that enough of the absences were as a result of work then I would discourage an application I'm afraid.
You are correct that you have to also should that you have
your living family life in the UK and that you now intend to make it your permanent home.
Kind regards,
Tom
Customer: replied 2 years ago.

Thomas,

My understanding is that the three reason listed in the HO booklet can serve to alleviate the 8-year length of residency but not the length of stay outside the UK (that is; if somebody who may fall under the three categories listed has been outside the UK for more than 730 days but less than 900 days within less than 8 years since he got his ILR). Can you please comment on that ?

KR

Omar

Expert:  Thomas replied 2 years ago.
Hi Omar,
That is correct.
Tom
Customer: replied 2 years ago.

Thomas,

Thanks, ***** ***** is right then I'll comeback to my original question: can I apply for citizenship if I hold an ILR for longer than 8 years but have been away for more than 730 days (perhaps less than 900 days)? Can I apply on this basis ?

KR

Omar

Expert:  Thomas replied 2 years ago.
Hi,
Yes, but only if you are able to claim the two year gaps as being as a result of work.
This is because the two year gap is something that the home office would normally view as meaning that you were not "resident" in the UK during that time because you spent no time in the UK. Therefore, they would view it as breaking the 8 years resident in the UK unless you were able to claim it was a result of your work.
Tom
Customer: replied 2 years ago.

Thomas,

Thanks, ***** ***** a fact or is it your interpretation of what is in the booklet ? because the booklet does not stipulate that the length of stay outside the UK must not be continuous. Would the term residency refer to living in the UK or having an ILR ?

Omar

Expert:  Thomas replied 2 years ago.
Hi,
This is my opinion of how the home office will interpret the rules and whether you were regarded as being "resident" in the UK during the two year period.
My view is they will not consider you as being resident unless you are able to claim one of the three exceptions.
Tom
Customer: replied 2 years ago.

Thanks Tom,

I knew it is a matter of 'discretion' and that the HO may have their own interpretation for absence and residency etc. In your opinion what it is the best path for me to apply for citizenship ?

KR

Omar

Expert:  Thomas replied 2 years ago.
Hi,
If you are going to remain in the UK for the foreseeable future then I would wait until 5 years after you return from the two year break and then apply personally.
Tom
Customer: replied 2 years ago.

Thomas,

That sounds the 'safest' thing to do; from your experience do the HO always interpret the term 'resident' as being physically present in the UK? has such 'ordinary residency' interpretation been disputed in court?

Omar

Expert:  Thomas replied 2 years ago.
Hi,
If you are doing that then the being "resident" issue does not matter.
Generally , if one spends more than 180 days in the UK they will be able to argue that they are resident for purpose of teh immigration rules. Futher analsys is outside the scope of your question.
You will agree that I have answered your original question now Omar.
Tom
Thomas, Lawyer
Category: Immigration Law
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Experience: UK Lawyer holding practising certficate for England & Wales.
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