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26 Oct Absences when applying LTR or ILR under Appendix FM?

Posted on October 26, 2022 in Spouses & Partners by
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Unlike other categories,  whereby applicants normally need to demonstrate that  their absences from the UK have been at or below 180 days in any 12 months with valid permission, there is no fixed threshold when applying for Further Leave to Remain (LTR) and Indefinite Leave to Remain (ILR) under Appendix FM.

However, all applicants are obliged to disclose their absences from the UK in application forms as the Home Office needs to assess the intention of the applicant to live with their partner in the UK and decides if they meet the eligibility.

In brief, the time spent together in the UK is one of the main expressions of the couple’s intention to live together and  it has always been an invisible requirement for family visa extension and settlement applications.

According to Paragraph E-LTRP.1.10, the domestic circumstances as well as the future intention need to be examined when one is applying to extend the spouse or partner visa, or for ILR.

E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.

This means that the applicant and the sponsor partner should have spent the majority of their time in the UK and intend to make the UK their main residence in the future. Couples can spend time overseas, but the number of days of residence should be significantly different from that in the UK.

And in Appendix FM: E-ILRP.1.2-1.3, it is even more straightforward to point out the rules for the number of days of residence.

E-ILRP.1.2. The applicant must be in the UK with valid leave to remain as a partner under this Appendix (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded).

E-ILRP.1.3. (1) Subject to subparagraph (2), the applicant must, at the date of application, have completed a period of continuous residence in the UK of at least 5 years (60 months) with the following:

(a) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1; or

(b) limited leave to remain as a partner granted under paragraph D-LTRP.1.1; or

(c) a combination of leave under (a) and (b).

……

In summary, the number of days of absence the couple has spent overseas or apart, albeit not clearly spelled out, will always be a significant factor when assessing an application in line with the general interpretation of the immigration rules.

 

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