If you are applying for British citizenship it may seem obvious to you that Home Office officials will realise that you are making a British naturalisation application because you want to live in the UK permanently and make it your home. However, as part of the British citizenship application process, you do need to demonstrate that your principal home will be in the UK. In this blog we look at what the British citizenship principal home test involves.
British citizenship solicitors
If you are contemplating a British citizenship application and want advice on the eligibility criteria or help with the British Nationality application process then the British citizenship solicitors offer expert advice. Call the British citizenship team at OTS Solicitors on 0203 959 9123 or contact us online.
The law on British citizenship
The law on British Nationality is contained in the British Nationality Act 1981 (the Act). In essence you can make a British naturalisation application if you meet the eligibility criteria in either section 6(1) or section 6(2) of the Act.
You are eligible to apply for British citizenship if:
Under section 6 (1) of the Act you have lived in the UK for the past five years and you have had Indefinite Leave to Remain for at least twelve months or if you are an EU citizen you have had permanent residence status for at least twelve months or
Under section 6 (2) of the Act you are the spouse or civil partner of a British citizen and you have lived in the UK for the last three years and if you are a non-EEA citizen you have Indefinite Leave to Remain status and if you are an EEA national you have permanent residence or
You have a British parent or
You have another type of British Nationality, for example, you are from Hong Kong and you have British Nationality overseas BN (O) status.
Why is there a British citizenship principal home test?
You may question why there is a strict British citizenship principal home test when nowadays international travel is so common place with many British citizens spending a large proportion of their year out of the UK in either second homes or due to overseas work commitments.
The Home Office British naturalisation application guidance states that:
"In order to qualify for naturalisation as a British citizen, an individual is required to demonstrate close links with, and a commitment to the UK. As part of this the expectation is that applicants should meet the residence requirements."
Many would argue that in 2020 it isn’t necessary to be physically present in the UK for set periods to demonstrate links and commitment to the country but when it comes to the British citizenship residence requirement Immigration solicitors will tell you that "rules are rules". However, British citizenship solicitors say that in some scenarios Home Office caseworkers are able to exercise a degree of discretion under the Immigration Rules. Whilst the Home Office guidance states that Home Office officials have some discretion to waive some of the residence requirements caseworkers can't ignore them totally. That’s why it is best to take legal advice from a British citizenship solicitor well in advance of your planned British naturalisation application so that you know what the British citizenship residence requirements are to enable you to work your overseas travel plans around the Immigration Rules to meet the residence requirement eligibility criteria.
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Residence requirements for five year British citizenship applicants
The residence requirements for a British citizenship application under the five year route under section 6(1) of the Act are that the applicant was:
In the UK at the beginning of the period of five years ending with the date of their British citizenship application and
Not absent from the UK for more than either 450 days in that five year period or 90 days in the period of twelve months ending with the date of their British citizenship application
Not, on the date of the British citizenship application, subject under the Immigration laws to any restriction on the period of stay in the UK and not at any other time in the twelve month period ending with date of British Nationality application subject to any restriction on their UK period of stay and
Not at any time in the five year period in the UK in breach of UK Immigration laws.
Discretion and the residence requirement in five year British citizenship applications
The Home Office guidance says that there is discretion to waive the residence requirements. However an applicant for British citizenship under the five year route must:
Have been in the UK at the beginning of the five year period unless their absence from the UK was down to serving in HM forces and
Be free from time restrictions under Immigration law at the time of their application.
Residence requirements for three year British citizenship applicants
The residence requirements for a British citizenship application under the three year route in section 6(2) of the Act are that the applicant was:
In the UK at the beginning of the period of three years ending with the date of their British citizenship application
Not absent from the UK for more than either 270 in the three year period or 90 days in the twelve month period ending with the date of the British Nationality application and
Not, on the date of the British citizenship application, subject under the Immigration laws to any restriction on their UK period of stay and
Not, at any time in the three year period ending with the date of the British Nationality application in breach of Immigration laws.
Discretion and the residence requirement in three year British citizenship applications
The Home Office guidance says that there is discretion to waive the residence requirements in the three year route save that the applicant for British citizenship must not be subject under Immigration law to conditions on their UK period of stay on the date of the British citizenship application.
Key questions when assessing the British citizenship residence requirements
When Home Office officials look at British citizenship applications they have to follow their official guidance that includes advice on how to assess if a British citizenship applicant meets the residence requirement. The caseworker needs to take into account and assess:
The applicant’s presence in the UK at the start of their qualifying period for British Nationality
The applicant’s absences during the three year or five year qualifying period
The applicant’s absences from the UK in the final year of the qualifying period for British citizenship
Technical absences (such as detention in hospital)
Any breaches of Immigration law during the qualifying period before the application for British citizenship.
The residence requirement to be present in the UK at the start of the qualifying period
If you are applying under the five year British citizenship route and you fall within the following categories then you don’t need to have been in the UK at the start of the
five year qualifying period:
An applicant applying only on the grounds of Crown service
An applicant who is or has been a member of the UK armed forces
The applicant is the spouse or civil partner of a British citizen in Crown or designated service overseas
An applicant who is classed as technically absent from the UK.
All other applicants for British citizenship must have been physically present in the UK on the first day of their qualifying period to apply for British Nationality. The Home Office caseworker has no discretion to overlook this residence requirement unless the applicant falls into one of the above categories.
When timing is critical it is helpful to know that the Home Office treat the start of the qualifying period for British citizenship as the day after the application date for British Nationality minus the length of the qualifying period of either three or five years. If you are two months or less out in meeting this aspect of the residence requirement then the Home Office official may exercise discretion and allow a re-declaration of the British Nationality application. If you are over two months out in meeting the residence requirement then your British citizenship application will be refused.
The residence requirement and absences from the UK
You may question how the Home Office will know how long you have been absent from the UK but your British naturalisation application will be assessed using evidence of your UK residence. Evidence can take the form of:
Your passport or travel documentation if stamped to show date of arrival in the UK and departure from overseas
Home Office records
In the absence of passports or travel documents giving the evidence needed over the qualifying period then other evidence such as a letter from an employer or a letter from HMRC or other official correspondence can be used.
The positive is that the Home Office guidance states that a British naturalisation applicant should be given the benefit of any doubt where claimed absences are
within the limits the Home Office would normally allow and where there is no basis to doubt the accuracy of the British citizenship application.
If you are looking for official confirmation of your residence in the UK then it is best to know that the Home Office guidance tells caseworkers to not normally accept a letter from an applicant’s doctor as proof of residence unless there is no other evidence available and the doctor saw the applicant on a regular basis and the letter from the doctor confirms this.
If you can't completely provide independent evidence of your residence during the three or five year qualifying period then the Home Office guidance says if there is information available that shows that you couldn't have travelled overseas then this must be accepted.
Counting days for the residence requirement
When it comes to calculating the number of days absent from the UK the Immigration Rules say that only whole days' absences from the UK should be counted. That means you don’t count your date of departure or your date of arrival back into the UK as absences when carrying out your absence calculations.
Physical presence and the residence requirement
The Immigration Rules say that you need to be physically present in the UK to meet the residence requirement but this doesn’t mean that you have to be either:
Domiciled in the UK or
Habitually resident in the UK.
Absences from the UK during your three or five year qualifying period
Where an applicant for British Nationality has spent more than the 450 days absent from the UK during the qualifying period for a section 6(1) five year route British citizenship application or 270 days for a section 6(2) three year route British Nationality application the Home Office official will consider exercising discretion if you meet the other requirements for British citizenship.
If an applicant exceeds permitted absence by thirty days or less then a Home Office caseworker must exercise discretion unless there are other grounds which would justify refusal of the British citizenship application.
The exercise of discretion is more complicated if
An applicant has absences of between 480-900 days for applications under the five year route or
An applicant has absences of between 300-540 days for applications under the three year route.
If the British naturalisation applicant meets all the British citizenship eligibility criteria save for absences within the above criteria then a Home Office official can exercise discretion if the applicant has established their home, employment, family and finances in the UK and at least one of the following criteria applies:
At least two years residence for five year routes or one year of residence for the three year route without substantial absences immediately prior to the start of the qualifying period for British citizenship. If the period of absence is greater than 730 days for five year applications or 450 days for three year applications the period of residence must be at least three years for five year applications or two years for three year applications
The excess absences are the result of postings abroad in Crown service under the UK government or in service designated under the Act or accompanying a British citizen spouse or civil partner on an appointment overseas or
The excess absences were an unavoidable consequence of the nature of the applicant’s career or employment with a multi-national company based in the UK with frequent overseas trips or
There are exceptionally compelling reasons of an occupational or compassionate nature to justify granting the British citizenship application.
The residence requirement during the final year of the qualifying period
There are even more complex Immigration Rules when it comes to the residence requirement in the twelve months preceding your British citizenship application. You have to be able to demonstrate that you intend to live in the UK. If you have been absent from the UK in the final twelve month qualifying period the Home Office may exercise discretion if you meet the future intentions residence requirement and total absences are within specified limits.
The longer the absence in the final twelve months of the qualifying period the more you have to be able to demonstrate that you have made the UK your home through establishing a home, employment, family, property and finances in the UK or your absence is justified by compelling occupational or compassionate reasons or there are exceptional circumstances.
When it comes to a British citizenship application it can seem that you need to be good at calculations to try and work out whether you meet the residence requirement eligibility criteria and to judge the timing of your application. However the Immigration Rules are far from clear cut and Home Office officials can exercise discretion. That’s why it is best to take legal advice on the content and timing of your British citizenship application.
British citizenship solicitors
If you are thinking about becoming British by applying for British citizenship it is best to take expert Immigration law advice from British citizenship solicitors on your Immigration and citizenship options and how best to secure British Nationality.
OTS Solicitors are specialist in Immigration law and British Nationality. The firm is recommended for Immigration law in the leading law directories, Chambers Guide to the Legal Profession and the Legal 500. OTS Solicitors also have Law Society accredited solicitor status as trusted specialists in Immigration law.
For the best expert legal advice and outcome on your UK Immigration application, contact OTS Immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Monday, 20 July, 2020