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How Do Excessive Absences From The UK Affect My Future Application?
Many migrants are stuck abroad due to the current pandemic. They are worried that it may affect their future application for indefinite leave to remain (ILR) or British Citizenship due to excessive absences. We briefly explore how absences from the UK may affect your next application.
The residence requirements for ILR
When you apply for ILR, there is a residence requirement which states that you must not be absent from the UK for no more than 180 days in a consecutive 12-month period. Otherwise, your residence will be considered as broken making you ineligible to apply for ILR.
However, where there are ‘exceptional circumstances’ the Home Office can waive the residence requirement if there are ‘serious or compelling’ reasons for the excessive absences.
The current guidance of the Home Office sets out the following:
However, you may consider a grant of ILR if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.
Serious or compelling reasons will vary but can include:
- serious illness of the applicant or a close relative
- a conflict
- a natural disaster, for example, volcanic eruption or tsunami
The residence requirement for British Citizenship
One of the requirements for applying for British Citizenship is the residence requirement.
If you are looking to apply for Citizenship based on your British partner, the residence requirement is as follows:
- in the UK at the beginning of the period of 3 years ending with the date of application
- not absent from the UK for more than either:
- 270 in that 3 year period
- 90 days in the period of 12 months ending with the date of application
Otherwise, the general residence requirement for British Citizenship is:
- in the UK at the beginning of the period of 5 years ending with the date of the application
- not absent from the UK for more than either:
- 450 days in that 5 year period
- 90 days in the period of 12 months ending with the date of application
The current Home Office guidance for applying Citizenship does not have ‘exceptional circumstances’ or ‘serious or compelling’ examples as given in the ILR guidance. Still, it does say that a caseworker has ‘discretion’.
The guidance states:
Where the applicant has absences of between 480-900 for applications under section 6(1) of the British Nationality Act 1981, or 300-540 for applications under section 6(2) and otherwise meets the requirements you must only consider exercising discretion where the applicant has established their home, employment, family and finances in the UK, and one or more of the following applies:
Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level.
It is important that you consider the merits of your application for Citizenship if your absences from the UK went over the prescribed limits as confirmed under the British Nationality Act 1981.
The residence requirement for EU Nationals
EU, EEA or a Swiss National and their family members, who have pre-settled status (also known as limited leave to enter) under the EU Settlement Scheme, can be absent from the UK for:
more than 6 months in total (in a single period of absence or more than one) in any given 12-month period.
Due to the health crisis around the world, if you are going to be absent from the UK for more than 6 months, the Home Office guidance states:
There are some exceptions:
- a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting:
If you think you will have an absence of more than 6 months in the near future, the alternative option would be to return to the UK and re-apply for a pre-settled status under the EU Settlement Scheme before the transition period ends on 31st December 2020.
At present, the Home Office guidances do not deal with absences from the UK relating to Covid-19. Still, we are of the view that a migrant has good reasons to argue that they have exceptional circumstances.
Where to get help
We at WH Solicitors understand the impact that the current pandemic has, and continues to have on individuals. If you are worried about any of your future applications, we can help you.
Get in touch with our friendly and experienced team today to find out how we can support you with your immigration needs through this difficult time. For confidential assistance, contact our experts on: (+44) 01483 608 786