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 we explore the rules, 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 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 a British citizen.
The main absences requirements
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.
Many individuals who are considering applying to naturalise as British, will however, have spent more days outside of the UK than the numbers permitted above. In these circumstances, it may be possible to make an application to naturalise as a British citizen and request that discretion is exercised.
Excessive absences during the three/five year qualifying period
The Home Office will 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).
An individual, if married to a British citizen, can also make a discretionary application where they have 300-540 days absence from the UK during the three-year period leading up to submission of their application. Those who are not married to a British citizen may make a discretionary application where they have 480-900 days absent from the UK in the five-year period leading up to 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, one of the following must apply:
- depending on whether or not the applicant is married to a British citizen and the exact number the absences 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:
- excess absences must be linked to overseas postings (Crown Service or designated roles under the BNA):
- excess absences must have been an unavoidable consequence of the nature of the applicant’s job: or
- there must be exceptionally compelling reasons (of an occupational or compassionate nature) to justify naturalisation being granted at that time.
Excessive absences during the 12 months
Whether or not the Home Office will use discretion to allow excessive absences in certain circumstances will depend on the number of days in question.
For final year absences up to 100 days, discretion should be exercised
In relation to absences of 100 – 180 days in the final year, provided 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 over 180 days, provided 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.
Applicants who are not married to a British citizen must also be able to demonstrate that they intend to have their main home in the UK.
How we 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 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.
