TNAG-1189-FCO40-1491-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1982 — Page 10

3.

Discretion to waive certain residence requirements

If in the special circumstances of any particular case the Home

Secretary thinks fit, he may do all or any of the following

things:-

(i) treat an applicant as meeting the requirement to have

been absent from the United Kingdom for no more than 450 days even though he or she has been absent for more

than 450 days;

(ii) treat an applicant as meeting the requirement to have

been absent from the United Kingdom for no more than

90 days even though he or she has been absent for more

than 90 days;

(iii) disregard periods spent in the United Kingdom in breach

of the immigration laws or subject to a time limit.

N.B. There is no discretion to waive the requirement that an

applicant be free of restriction on his or her stay on the date of

his or her application nor, except in the case of a person to whom

section 4(3) applies, that he or she must have been in the United

Kingdom at the beginning of the period of 5 years ending with the date of his or her application.

4.

Exercise of discretion to waive certain residence requirements

(a) It was acknowledged during the Commons Committee stage of

the Bill that a person who was settled here before commence-

ment could meet a requirement of 5 years ordinary residence

but could not meet the actual residential requirements

because, eg his or her periods of absence had been too great.

An undertaking was given that an application would be accepted

from a person who was settled here immediately before commence-

ment and who had completed 5 years ordinary residence but whose absences had exceeded the 450/90 days limit, by

regarding this as 'special circumstances' und exercising the

discretion in 8.4(4)(a) (see B3(i) and (ii) above). It would,

of course, be for the applicant to show that he or she had

remained ordinarily resident in the United Kingdom especially

if his or her period(s) of absence had been particularly excessive. {

(see ORDINARY RESIDENCE in the Divisional Hundbook).