17 May Do you meet the absence requirement?
The absence requirement is different depending on the type of visa you have applied or intend to apply for. However, as a general rule, to qualify under the absence requirement, the applicant must not have spent any of his/her time in the UK without valid leave to enter or remain and must not have breached his/her leave conditions. Please refer to paragraph 39 (E) of the Immigration Rules for exceptions.
Absence requirement for settlement (ILR) application based on 5 continuous years in the UK
If the applicant applies for settlement based on a working visa such as Tier 2 (General), PBS dependant partner or children, Representative of an Overseas Business (Sole Representative), UK ancestry etc, he/she will be able to submit an ILR application up to 28 days prior to reaching the end of the specified period.
Please note that applicant cannot exceed 180 days outside of the UK in any consecutive and rolling 12 months period leading to his/her settlement application.
Breaks in the continuous lawful period
Absences of more than 180 days outside of the UK in any consecutive 12 months period before the date of application will mean that the continuous period has been broken. However, the UKVI might exercise its discretion if there are serious or compelling reasons, for instance:
- Serious illness of the applicant or a close relative
- A natural disaster, for example, volcanic eruption or tsunami
The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents, for example, medical certificates or evidence of disruption to travel arrangements.
Please note that absences of more than 180 days in any 12-month period for secondment overseas will not be deemed ‘exceptional’ or ‘compelling’.
Absence criteria for ILR application on the ground of Long Residence in the UK
An applicant is able to apply for settlement once he/she has legally resided in the UK for a continuous 10 years period. This is also known as ‘Long Residence’.
The absence criteria for Long Residence are that migrant cannot exceed 540 days outside of the UK within the qualified 10 years, and in addition he/she cannot spend more than 180 days as a single absence outside of the UK.
There are more complex circumstances when the 10 years of consecutive residence might be broken.
Absence requirement for naturalisation as a British citizen under the British Nationality Act 1981 section 6 (1)
A migrant is able to apply for citizenship once he/she has been granted ILR or permanent residence and held this status for 12 months under the British Nationality Act 1981 section 6 (1).
The absence requirements are that the applicant cannot exceed 450 days outside the UK for the qualified 5 years, and 90 days for last 12 months. There is a degree of discretion.
Absence criteria for naturalisation as a British citizen under the British Nationality Act 1981 section 6 (2)
The absence requirement is that a migrant cannot exceed 270 days outside the UK for the qualified 3 years, whilst 90 days for last 12 months. Same as above.
Contact Our Immigration Team
For expert advice regarding any aspect of the settlement or British nationality application, please contact our immigration team on 0203 384 3075 or contact us here.