In applications to naturalise as a British citizen, the absence requirements are strict. However, in some circumstances the Home Office will consider the application on a discretionary basis where these requirements have not been met. Here, our Solicitor Cathryn Davies explores the rules on absences, and where it may be possible to request that discretion is exercised.
Individuals aged 18 and over who have settled in the UK can apply to naturalise as a British citizen, provided that they meet the requirements as set out in section 6(1) of the British Nationality Act 1981 (BNA), or section 6(2) if they are married to, or the civil partner of, a British citizen.
The main requirements on absences
Applicants who are not married to British citizens must have spent no more than:
- 90 days outside the UK in the 12 months prior to submitting their application; and
- 450 days in total outside the UK across the five years prior to submitting their application.
Applicants who are married to British citizens must have spent no more than:
- 90 days outside the UK in the 12 months prior to submitting their application; and
- 270 days in total outside the UK across the three years prior to submitting their application.
Certain immigration routes, such as the partner route, do not set specific limits on the number of days that the individual can be outside the UK. As such, many individuals who are considering applying to naturalise, are concerned to find that they have spent more days outside of the UK than the numbers permitted above.
In these circumstances, it may still be possible to make an application to naturalise as a British citizen and request that discretion is exercised. Applications with excess absences are complex and, therefore, require careful consideration.
Excessive absences during the three/five year qualifying period
The Home Office Nationality policy: Naturalisation as a British citizen by discretion provides useful guidance on the circumstances in which decision makers may exercise discretion in relation to excess absences.
The Home Office must apply discretion to allow absences of up to 300 days (during the three-year qualifying period of those married to British citizens) and 480 days (in the five-year qualifying period of those not married to British citizens), unless there are other grounds on which the application may be refused.
An individual, if married to a British citizen, can also make a discretionary application where they have between 300 and 540 days absence from the UK during the three-year period leading up to the submission of their application.
Those who are not married to a British citizen may make a discretionary application where they have between 480 and 900 days absent from the UK in the five-year period leading up to the submission of their application.
In these circumstances, an application will generally not be successful unless the applicant can demonstrate that:
- they have established their home in the UK;
- they have employment in the UK;
- they have established their family in the UK; and
- their finances are established in the UK.
In addition, at least one of the following must apply:
- depending on whether or not the applicant is married to a British citizen and the exact number of the absences that they have from the UK, they must have one to three years residence in the UK without substantial absences immediately prior to the qualifying period;
- the excess absences are linked to overseas postings (Crown Service or designated roles under the BNA);
- the excess absences must have been an unavoidable consequence of the nature of the applicant’s job;
- there are exceptionally compelling reasons (of an occupational or compassionate nature) to justify naturalisation being granted now;
- the applicant was prevented from being in the UK because they had been removed from the UK, and the decision to remove them was later overturned;
- the applicant was incorrectly prevented from resuming permanent residence in the UK following an absence; or
- the excess absences were because the applicant was unable to return to the UK because of a global pandemic.
Excessive absences during the last 12 months
Whether or not the Home Office will use discretion to allow excessive absences in the final year will depend on the number of days in question.
For those applying who are not married to, or the civil partner of, a British citizen, the decision maker will typically only exercise discretion for excessive absences in the final year of the qualifying period if the ‘future intentions’ requirement is met.
For final year absences of up to 100 days, discretion should be exercised.
In relation to absences of 100 to 180 days in the final year, provided that the residence requirement across the whole qualifying period is met, discretion will be exercised if the applicant can demonstrate strong ties to the UK. If the applicant has not met the residence requirement across the whole qualifying period, discretion will only be exercised if:
- the applicant has strong ties to the UK and has made it their home; and
- the absences are due to Crown service or compelling occupational or compassionate reasons.
For final year absences of over 180 days, provided that the residence requirement across the whole qualifying period is met, discretion may be exercised if the applicant can demonstrate that they have made the UK their home. If the applicant has not met the residence requirement across the whole qualifying period, discretion will only be exercised if there are exceptional circumstances.
Naturalisation: How our Immigration Solicitors can help
When applying to naturalise as a British citizen, particularly when doing so at the discretion of the Home Office, it is important to provide detailed evidence of your ties to the UK and your intention to live here in the future.
We are experienced in preparing naturalisation applications and have ensured numerous successful outcomes for clients, despite there being excessive absences.
If you require legal advice on absences for naturalisation applications or you need any other advice on this area of law, please contact us.
This article was originally published in March 2020 and has been updated. It is accurate as of the new date of publication shown.
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