englishguygoinghome

I'm now after some advice from the resident citizenship experts ...

For various reasons, some very compelling, others less so, but which I would rather not go in to publicly, we would like to get my wife's citizenship sooner rather than later.

I think there may be a possibility for her to get a passport during a fixed time window this summer rather than waiting for next Spring.

The background:
We were in the UK in the summer of 2011 with a clear view to settlement. At this time my wife had applied for a UK settlement visa, been rejected and launched an appeal. During this visit we looked at houses, schools and she took and passed the KOL test.
The appeal was granted in early 2012 and we returned in the spring (2012) and have not left the UK since.

Effectively this means there will be a period during this coming summer where she was present in the UK three years previous (with a clearly evidenced intent to settle) AND has spent less than 270 days out of the UK since that time.

A few years ago the UKBA guidance said you needed to be "present", then it said "present with an intent to settle", then it said "settled", now it says "present and free of any immigration restrictions"

My questions therefore are:

1. What is the actual legal requirement regarding presence/residence/immigration status 3 years prior to application (both on the day 3 years prior and for the intervening period), I can't find the relevant bit in the Immigration Act
2. Had the ECO not made an error in rejecting her visa application, she would have been sithout immigration restriction at the time in question. Does the granted appeal have a retroactive effect in that case?

Thanks!

roaringmouse

Unless someone with good knowledge of how they would apply the law in a case like this comes along and answers, then it might be worth checking in with an OISC registered migration adviser. It's not a "normal" situation by the sound of it.

englishguygoinghome

Which brings me to qustion three: any one have any recommendations of a good one for citizenship matters - we had bad luck twice on immigration queries?

englishguygoinghome

OK - so just after posting I've gone and found the legislation: Schedule 1 to the British Nationality Act 1981 says:

But that seems to be due for amendment under the Borders, Citizenship & Immigration Act 2009 - and I can't find out the date when those changes will be effective ...

roaringmouse

To begin with you could try posting on the UKResident forums as they have registered advisers posting. However it is likely they will want to ask more in depth questions (e.g. details of rejection and appeal) and will only give general advice on the forum.

BritInParis

Does your wife possess ILR and if so when was it granted?

chaoclive

I have no clue, but what about posting on www.immigrationboards.com. Someone might come up with something.

Good luck!

englishguygoinghome

She has ILE, applied for in early 2011 and granted upon appeal in early 2012. So the question is firstly - are the rules requiring suitable leave for the entire qualifying period not active, or still pending; and secondly - does the appeal effectively grant that leave from the initial application or from the date the appeal is granted?

BritInParis

Your wife would need to be physically present in the UK for at least three years preceding her application and be free from immigration restrictions on the date of her application for naturalisation. She doesn't need to have held ILR/ILE for three years before making her application. Providing she has been physically present in the UK for three years and holds ILE on the date of application she would satisfy the residence requirements.

You say that you made the initial application in the summer of 2011 but it wasn't granted until spring 2012. Where was your wife during this period? If she holds ILE I presume she was outside the UK for at least some of the time?

englishguygoinghome

Yes, she was outside the UK for most of the time, but spent enough time in the UK that there is a 3 week window this summer where she will have been absent for less than 270 days in the last 3 years. When she was here 3 years before that it was on a tourist visa with a pending appeal for ILE.

BritInParis

Okay, so providing that is the case and your wife hasn't spent more than 90 days outside the UK in the last year on the date of her application then she should be fine.

Be aware that even once you have lodged your application (best to go via the Nationality Checking Service) it still has be to processed, an ceremony date allocated and then she'll need to attend an interview when she makes an application for her first passport. I have friends who are doing this at the moment and it's not a quick process at the moment. Expect it to take at least three months and factor that into your plans.