Can I still apply for Naturalisation if I do not meet the absences requirement?

Naturalisation is a process in which a foreign national who is free from immigration time restrictions can apply to become a British citizen. Becoming a British citizen is a significant life event; but Naturalisation is not an entitlement. The application process for Naturalisation is subject to legal and residence requirements, which, can be waived to certain extend, but cannot be ignored altogether.

The residence requirements for Naturalisation include the absences requirement, which is a particularly sore subject due to the ongoing COVID-19 pandemic due to the associated borders closure and flights cancellations. Thankfully, the Secretary of State has powers to exercise discretion and to waive the absences requirement.

In this article we wish to discuss how discretion can be exercised in relation to the excess of the absences limits.

Residence requirement for Naturalisation

If the applicant is married to or in a civil partnership with a British citizen, they need to have met the 3-year lawful continuous residence requirement upon application (s.6(2) of the British Nationality Act 1981) and be free from immigration time restrictions on the date of application. If not, the applicant needs to have met the 5-year lawful continuous residence requirement, and they need to be free from immigration time restrictions for 12 months before applying for naturalisation (s.6(1) of the British Nationality Act 1981). This is known as the qualifying period.

For Naturalisation applications under s.6(1), in the qualifying period of 5 years, the number of days of absences (number of days the applicant was away from the UK) should be no more than 450 days. For applications under s.6(2), the applicant’s days of absences within the qualifying period of 3 years should be no more than 270 days. In addition, in the final year of the qualifying period, the applicant’s absences should be no more than 90 days.

What if the applicant does not meet the above requirements, for instance, having exceeded the days of absences? Prospective applicants should not feel discouraged as this does not mean the Naturalisation application will be automatically refused. According to the Home Office guidance document, where an applicant has spent more than 450 days for s.6(1) applications, or 270 days for s.6(2) applications, outside of the UK during the qualifying period, caseworkers must consider exercising discretion if applicants meet other requirements.

The applicant has absences of more than 450/270 days during the qualifying period

Where the applicant has exceed the permitted absences by 30 days, the caseworker when determining the application must exercise discretion unless there are other grounds on which the application falls for refusal.

Where the applicant has absences of 480-900 days when applying under s.6(1) or 300-540 days when applying under s.6(2), caseworkers are advised to only consider exercising discretion where the applicant has ‘established their home, employment, family and finances in the UK’. In addition, applicants also need to meet one or more of the following requirements.

• At least 2 years residence (for s.6(1) applications) or 1 year (for s.6(2) applications) without substantial absences immediately before the start of the qualifying period. If the absence is above 730 days (for s.6(1) applications) or 450 days (for s.6(2) applications), the residence without substantial absences should be at least 3 or 2 years respectively.
• The excess absences are the result of postings abroad in Crown service or in service designated under s.2(3) of the 1981 Act, or accompanying a British citizen spouse or civil partner on an appointment overseas.
• The excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with frequent travel abroad.
• Exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation, such as a firm job offer where British citizenship is mandatory.
• The excess absences were because the applicant was unable to return to the UK because of a global pandemic.

The applicant has absences of more than 90 days in the final year of the qualifying period

Home Office caseworkers are advised to only exercise discretion for excessive absences during the final year of the qualifying period for s.6(1) applications if the future intentions requirement is met. The purpose of the requirement is that applicants wishing to be naturalised as British citizens should not already have decided, or intend, to break their links with the UK. Caseworkers usually determine the future intentions of applicants based on past behaviour.

Where the future intentions requirement is met for s.6(1) applications, or where the applicant is applying under s.6(2), caseworkers then need to look at the days of absences in the final year of qualifying period, and whether the residence requirement across the qualifying period is met.

For instance, if the days of absences in the final year are 100 or less, caseworkers would exercise discretion. Where the absences are 100-180, and the residence requirement throughout the qualifying period is met, discretion is only exercised if the applicant demonstrates strong links through presence of family, employment and their home in the UK. If the residence requirement is not met, they also have to prove that the absence is due to Crown service or by compelling occupational or compassionate reasons.

If the days of absences in the final year are over 180, where the applicant has met the overall residence requirement, discretion can be exercised if only the applicant has demonstrated that they have made the UK their home. If they are over 180 and the overall residence requirement is not met, discretion can only be exercised if the applicant has demonstrated that they have made this country their home, and that there are exceptional circumstances.

Conclusion

It is reassuring that the Home Secretary can exercise discretion in circumstances where the absences requirement has not been fully met. Whether the excess in absences has been the result of the ongoing pandemic, or an unavoidable consequence of the nature of the applicant’s career, it might be worth attempting the application relying on discretion.

If you would like to apply for naturalisation and you believe that discretion would be beneficial to your application, please do not hesitate to contact our Immigration team. At Chan Neill Solicitors LLP, we understand the nuances of Asian and Middle Eastern cultures well. Across our team, we speak many languages including Mandarin, Cantonese, Gujarati, Russian, French, Korean, Portuguese, Hungarian and Spanish. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients’ needs.

Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.