Uk Citizenship - 3 Year Residential Qualifying Period Query

[simiUK]

My fiance first came to the UK on 1 August 2008 on a 6 month visit visa. we married in october 2008 and i applied erroneously for FLR (M) in december 2008, which was refused. as we appealed she was still in the UK (not in breach of immigration rules) beyond the expiry of the 6 month visit visa and did not leave the UK until May 2009. we got the spouse settlement visa in bangkok after a 3 month wait and she returned to the UK on this visa on 1 October 2009.

we got ILR on 2 October 2011 and i assumed we would not be able to apply for citizenship until 1 October 2012.

My question is; since she was present in the UK in January 2009, can we apply now? she complies with the other aspects of the residential qualifying requirements; i.e. has not been absent more than 270 days during the 3 year period january 2009 to january 2012; and has not been absent more than 90 days during the last 12 months.

[7by7]

I think that as she was in the UK with exceptional leave, i.e. not in accordance with the immigration rules, while her appeal was being heard that this period would not count for naturalisation purposes.

But I'm not sure, hopefully someone more knowledgeable can advise.

[simiUK]

thanks 7 by 7; unusual for you not to have a definitive answer! i spoke to an advisor at ukba yesterday and they said it was ok so long as there was not a "breach of immigration rules". for naturalisation applications the law/policy/eco guidelines are not as detailed and thorough on the ukba site as they are for other types of applications so i didnt want to take the chance. i have sent this query to them by email so i can get clarification in writing. in the event of any doubt i will wait until 1 october when the application should be a formality. if you could shed any light in the meantime i would be grateful other wise will post the response from ukba here in case anyone else finds themselves in the same position.

[steve187]

If you can apply before April, as no doubt the prices will increase.

[7by7]

It is almost a certainty that the fee will increase in April, so if you can get her application in before then; do so.

I'd be grateful if you would post the UKBA's reply.

[simiUK]

i spoke to another advisor this morning about this issue: he said for the purposes of meeting the 3 year residential qualifying criteria the applicant must have had 3 years continuous permission to enter/remain in the UK (the type of visa held is not relevant). because my spouse had a 3 month absence from the UK without such leave to enter/remain, the application will not be valid until

2 October 2012, calculated from the date she re-entered the UK with her SET (M) visa. I am a bit peeved that 2 different UKBA advisors gave me contradictory advice; could have wasted £836 on this...no doubt come October the application fee will be £900+. This also seems a fairly basic and reasonable criteria to include prominently in their AN guidelines/rules; i'd be surprised if a few people hadn't fallen foul of this in the past.