SPOUSE AND KIDS NATURALIZATION

[engineer999pk]

Hi,

I got my ILR along with my wife and kids in Feb-2012 under Judicial Review . I will be eligible for Naturalization in Feb-2013 but would like to ask a question about the eligibility of my wife and kids. They have not completed 3 years of residency in UK. They have been here off and On (spent 20 months from July 2008 till May 2010 and then came back to UK in Dec 2011 and are here since then). My question is : "do they have to complete the 3 years before they apply for Naturalization OR since they have also completed the 12 months after ILR without a single day break, can also apply with me in Feb-2013??

Thanks

[sarvo_uk]

Hi,

I got my ILR along with my wife and kids in Feb-2012 under Judicial Review . I will be eligible for Naturalization in Feb-2013 but would like to ask a question about the eligibility of my wife and kids. They have not completed 3 years of residency in UK. They have been here off and On (spent 20 months from July 2008 till May 2010 and then came back to UK in Dec 2011 and are here since then). My question is : "do they have to complete the 3 years before they apply for Naturalization OR since they have also completed the 12 months after ILR without a single day break, can also apply with me in Feb-2013??

Thanks

If your wife and baby have ILR, they can also apply for naturalization when you do. Naturalization is available 12 months after ILR and as you have mentioned they have not been out of country since July 2011. Note that your baby is entitled to british citizenship but please check section 1(3)

[John]

sarvo_uk, if only it was that simple!

engineer999pk, as regards your wife, there are two possibilities, the first as regards a section 6(1) application, the same as you. The second involves making a section 6(2) application as the spouse of a British Citizen.

To make a section 6(1) application, there are other tests, but it is absolutely important that the applicant was physically in the UK exactly 5 years before UKBA receive the Naturalisation application. So as she did not arrive in the UK until July 2008, if you are going to make your application in February 2013, as your wife was not in the UK in February 2008 her application would be bound to fail. UKBA have no discretion about this particular rule .... it is either passed or failed on the facts.

Now let's consider section 6(2). The success of this depends upon your application being successful, so if for any reason your application fails, hers would be bound to fail as well.

But let us assume your application succeeds, would her section 6(2) application have a chance? For such an application the applicant needs to have been physically in the UK exactly three years before UKBA receive the application. So if the applications are made in February 2013, was she in the UK in February 2010? It appears yes!

But then other tests need to be considered, in particular in the three-year qualifying period .... sometime in February 2010 to sometime in February 2013, was she outside the UK for more than 270 days? Well yes, she was outside the UK for about 17 months, over 500 days, so her February 2013 would fail for that reason.

So to summarise for your wife, no way should she apply for Naturalisation at the same time as you in February 2013. I suspect she will need to wait until sometime in December 2014, shortly after the third anniversary of her arriving back in the UK in December 2011.

The children? Presumably all born outside the UK? Please confirm.

The first point to make about the under-18 years old children is that they will not be applying for Naturalisation. Instead they will apply for Registration as British. The difference? Once granted, effectively no difference, but the application requirements are very different!

Whether the children are 13 or over, or under 13, does not matter as they appear to have lived in the UK over over two years.

But please confirm their ages, especially to confirm that none of them are 18 or over.

[engineer999pk]

Hi John,

My kids are all under 18. One is 13, second one is 11 and third one is 5 years old.

Thanks

[John]

Fine, based upon what you have posted, in February 2013, once you have had your ILR for at least one year, you can submit a form AN to apply for Naturalisation, and a form MN1 can be submitted for each of the children, their applications being made under section 3(1).

Clearly the children were born outside the UK, given your wife did not come to the UK until July 2008.

[engineer999pk]

Hi John,

Thanks a lot, and yes all of my kids have been born outside UK.

In short, you suggested that, I can apply for Naturalization along with my kids in Feb-2013, but my wife has to wait till 2014. Am I right???

Thanks again

[John]

She certainly cannot apply with the rest of you in February 2013, given she was not physically in the UK in February 2008.

Let's do an accurate day count, to see if she might apply before December 2014. That is, let us assume she might make an application in July 2013, shortly after the fifth anniversary of her arriving in July 2008. So the question is, in the 5-year period from July 2008 to July 2013, how many days will she have spent outside the UK?

An accurate day count please, but remember only to count the days wholly outside the UK, not the day of leaving the UK, nor the day of arriving back in the UK.

[engineer999pk]

Hi John,

Many thanks. Following your suggestion, she will not be applying till 2014. Its going to be me alongwith my kids to apply in Feb 2013. Please confirm if this sounds like a plan OR should I alone apply in Feb 2013 and once I have my case approved and have passport with me, then apply for kids?

Thanks

[John]

The children applying at the same time as you is OK, but obviously the success of their applications depends upon the success of yours.

If you want to delay the children's applications until after your application is successful, that is fine.

You do not what to do an accurate day count for your wife?

[Jambo]

The children applying at the same time as you is OK, but obviously the success of their applications depends upon the success of yours.

If you want to delay the children's applications until after your application is successful, that is fine.

You do not what to do an accurate day count for your wife?

John,

The children have only completed a year in the UK since their return. It would be 15 months when the OP applies. With the 13 yo (and maybe the 11 yo as well), he is running a risk of refusal. Might be better to wait for another year before applying for the kids.

[engineer999pk]

John,

My wife has been out of UK for 659 days in total in 5 years, which means that she has to wait or has to complete 209 days (7 months) beforeshe can apply. So she cannot apply before Feb 2014.

Jambo,

What is "OP"??? Does the rule of 3 years or 5 years stay also applies to children under 18??

[Jambo]

OP = Original Poster i.e. you.

There are no 3 years or 5 years for children. For children born abroad the application is at discretion. The main criteria is that the child future is clearly in the UK. For older children (above 13), the HO would expect the child to have been living in the UK for 2 years. Your children did live in the UK for more than 2 years in total but I don't know how the HO would treat the long break in between. That's why I suggested maybe to delay the application by a few months.

For your wife, could her absences drop to around 480 days before 2014?

[John]

As regards whether the 13yo has a possible problem, if we look at this UKBA staff guidance, and in particular look at 9.17.19, we will see it reads :-

We should normally expect a minor child aged 13 or more to have completed 2 years residence in the United Kingdom before agreeing to registration.

-: and in my opinion the child will have abided by that.

In any case, not an issue for the children under 13.

[engineer999pk]

Jumbo & John,

Well thanks to both but now I'm bit confused!!! However, in short, its going to be like this:

1. I will apply first in feb 2013
2. Kids to apply in Dec 2013 (completion of 2 years after return to UK)
3. My wife to apply in Or after Feb 2014

Is this the plan you suggest??

[John]

Not sure I understand your no. 3. The logic of that?

If she does apply in February 2014, what would her day count outside the UK be? In a 5-year period from February 2009 to February 2014?

She clearly cannot make a section 6(2) .... 3 year ..... application in February 2014. as she was not in the UK in February 2011.

I suspect she will need to wait until December 2014 before applying ..... just after the 3rd anniversary of her returning in December 2011.

[engineer999pk]

John,

In feb 2014, her total days count out of Uk in 5 years will be 450 days. And she was in Uk in Feb 2009. So under 5 yrs rule she should be eligible by feb 2014.

Thanks

[John]

Previously you told us :-

My wife has been out of UK for 659 days in total in 5 years

-: and I think that was for "the 5-year period from July 2008 to July 2013". Well that is what I asked for.

But now you say that the day count is 450 days for the 5-year period from February 2009 to February 2014. So why the huge difference between 659 and 450? I do not understand, given you had previously told us that she was in the UK "from July 2008 till May 2010".

[engineer999pk]

John,

Sorry for that. My wife will apply in DEC 2014. Can you now finally guide me about my kids. The elder one 13, then 11 and 5 years old. Do they have to wait till DEC 2013?? or can they apply in mid of this year i.e., after my case approval?

As I am now confused with the remarks of Jambo!

Thanks again,

[John]

If you are looking a for a definitive statement, sorry you will not get one. Clearly it is safer to wait until December. You can see the UKBA staff guidance, and I think it is OK for them to apply at the same time as you. But am I able to guarantee that? Clearly not. Jambo is most certainly entitled to his opinion.

Of course no problem the 11yo and 5yo applying at the same time as you, but presumably you want all three children to apply together at the same time, in order to reduce the total application fees.

[engineer999pk]

John,

Thanks a lot for your very kind help and advice.