Applying for British Citizenship and Absences from the UK
Wanting to apply for naturalisation as a British citizen and a history of absences from the UK are not mutually exclusive. At least that is what most UK Immigration solicitors think. However, the UK Immigration Rules and Home Office guidance sets out the law and policy on how applications for British Citizenship will be viewed by UK Visas and Immigration officials when you have a history of absences from the UK for British Citizenship.
British nationality solicitors
London based OTS Solicitors specialise in British nationality law and have substantial experience in successful naturalisation and British Citizenship applications and advising on routes to settlement in the UK. Their expertise is recognised by rankings in the leading legal directories, Legal 500 and Chambers Guide to the Legal Profession.
To speak to OTS Solicitors about a British Citizenship application and how we can help you call 0203 959 9123 or complete our online form.
British Citizenship applications and absence from the UK
The Immigration Rules on British Citizenship applications and absences from the UK are complicated. That is because the rules on absences are different depending on the type of naturalisation application you are making.
Types of British Citizenship application
The law on applying for British nationality is set out in section six of the British nationality Act 1981. You can apply to naturalise under section 6(1) or 6(2) of the Act.
Section 6(1) British nationality applications
If you are not married to a British citizen and you want to apply for naturalisation you should make your application under section 6(1) of the British nationality Act.
To make an application for British Citizenship under the 1981 Act you need to show that:
You plan to have your home in the UK; and
You have been in the UK for at least five years by the date of your application; and
You have not been absent from the UK for more than 450 days in the last five years; and
Your absences from the UK have not exceeded ninety days in the last twelve months.
Section 6 (2) British nationality applications
If you are married to a British citizen and you want to apply for naturalisation you should make your application under section 6(2) of the Act.
To apply under section 6(2) you need to show that:
You plan to have your home in the UK; and
You have been in the UK for at least three years by the date of your application; and
You have not been absent from the UK for more than 270 days in the last three years; and
Your absences from the UK have not exceeded ninety days in the last twelve months.
Exceptions to the three and five year residence rules
If you have not lived in the UK for the relevant period (three or five years depending on the type of nationality application) there are some limited exceptions to the residence requirement.
For example, you do not need to meet the three or five year resident requirement if you are or have been a member of the UK armed forces or if you are the spouse or civil partner of a British citizen in overseas Crown service.
If you have any questions about the residence requirement then it is best to take legal advice before submitting your naturalisation application.
British nationality applications and absences from the UK
The Home Office guidance sets out how UK Visas and Immigration officials should assess an applicant’s absences from the UK during either the three or five year period prior to submission of their application. Applicants may want to use a UK citizenship absences calculator when adding up the dates.
One of the questions that London immigration solicitors are asked by applicants for British nationality is how do Home Office officials know about absences from the UK. Absences from the UK can be calculated from:
Your passport or travel documents;
Home Office records;
Bank statements;
Employment history or records.
If your application is ‘borderline’ or you anticipate problems in being able to establish residence for the requisite period (for example if you spent significant periods working overseas) it is sensible to take legal advice on the timing of your application and the evidence of residence to secure the best outcome for you.
What counts as absence from the UK?
Some Immigration clients travel on an almost weekly basis with their Employment and worry about how those absences will be considered by the Home Office. If you are a frequent traveller you will be pleased to learn that whole day absences from the UK are counted. That means there is no requirement to count the dates of your departures and your arrivals as absences from the UK.
What is more, you do not have to establish that you were domiciled in the UK or even prove that you were ‘ordinarily resident’ in the UK over the requisite three or five year period. All you have to show is that you were not absent from the UK for more than the stipulated number of days in the three year or five years before your British nationality application or for more than ninety days in the twelve months prior to the submission of your application.
Home Office discretion and absences
When it comes to Immigration Rules on British nationality applications and absences from the UK, Immigration solicitors are pleased to report that Home Office officials are allowed to exercise a little discretion.
You will not be surprised to learn that there are rules on the exercise of discretion but the important points to note are:
If you are applying for British nationality under section 6(1) of the 1981 Act (five year residence requirement) UK Visas and Immigration officials will only consider exercising discretion on absences if your absences are between 480 to 900 days;
If you are applying for British nationality under section 6(2) of the 1981 Act (three year residence requirement) officials will only consider exercising discretion on absences if your absences are between 300 to 540 days;
For absences over ninety days within twelve months of either a section 6(1) or (2) application, discretion can be exercised if your absences are one hundred days or less. If your absences are between 100 and 180 days, but all the other criteria are met, caseworkers will consider whether there were compelling reasons for the absences. If your absences, in the twelve months prior to submission of your British nationality application exceeded 180 days, the caseworker will only exercise discretion if you can demonstrate that exceptional circumstances justify the grant of your application.
However, when looking at the exercise of discretion, UK Visas and Immigration officials will require:
The other eligibility requirements to be met;
You to have spent two years (section 6(1) application) or one year (section 6(2) application) without substantial absences from the UK. If your absences exceed 730 days (section 6(1) application) the period of residence must be at least three years. If your absences exceed 450 days (section 6(2) application) the period of residence must be at least two years.
The UK Visas and Immigration caseworker will then go onto consider the reasons for your absences from the UK. For example:
Frequent travel with a multinational company for Employment purposes but you have maintained a home in the UK;
Illness or family bereavement.
If you want to apply to naturalise as a British citizen but you are concerned about your eligibility to apply and the absence requirements the best option is to take expert legal advice on the timing of your application and the presentation of your case to ensure that you stand the best prospects of success in the Home Office exercising discretion and granting your application.
British nationality solicitors
If you are considering an application to naturalise as a British citizen it is best to take expert Immigration law advice on your Immigration and citizenship options before submitting your application.
OTS Solicitors are specialist in Immigration law and British nationality. The firm is recommended for Immigration law in the leading law directories, Chambers Guide to the Legal Profession and the Legal 500. OTS Solicitors also have Law Society accredited solicitor status as trusted specialists in Immigration law.