The British Nationality Act (BNA 1981) allows individuals to naturalise under either section 6(1) or 6(2) of the Act. Section 6(2) applies where an individual is married to a British citizen. An Applicant will need to demonstrate their commitment and future intentions to have their principal home in the UK before they can naturalise as a British citizen. They will also need to satisfy an absence requirement.

Guidance

The Nationality policy: Naturalisation as a British citizen by discretion Version 4.0, published 23 September 2019, contains guidance relating to excessive absences.

How Long Can I be Outside the UK?

Timing of Application

The first matter to consider will be the timing of any application.

If married to a British citizen the Applicant must have been in the UK beginning with a 3-year period ending with the date of application or if not married to a British citizen (or not relying on marriage) the Applicant must have been in the UK at the beginning of a 5-year period ending with the date of application.

There are some limited exceptions to this requirement for those:

The date of application is arguably now the date on which the application is submitted and paid for online.

It is important to note that there is no discretion to overlook this requirement and applications may therefore need some careful planning.

Excessive Absences

There are many ways in which absences can be calculated from travel documents to Home Office records, employment records or bank statements. Continuity in the evidence is important, particularly where absences are borderline.

If there is no passport, the guidance advises that caseworkers “should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim”.

The guidance continues: “If there are gaps in a person’s evidence of residence and it is clear from the information available that they could not have travelled, you must accept this. Examples of this might include a refugee who has no means of travel or where immigration records confirm continuous residence”.

Whole days’ absences from the UK will be counted and there is no need to count the dates of departure and arrival as absences. It is important to note that an individual only need be physically present, they do not need to be ordinarily resident or domiciled in the UK.

Meeting the Absence Requirement

An individual will need to demonstrate they have not been absent for more than 450 days in the last 5 years for an application under section 6(1). An application under section 6(2) requires that absences be no more than 270 in the last 3 years.

Both applications need to demonstrate that the absences have not exceeded 90 days in the last 12 months.

The British Nationality Act allows for discretion to be made in respect of the residence requirement in an application to naturalise. A caseworker will consider the following guidance, where the absences are between 480-900 for applications for naturalisation under section 6(1) or 300-540 for applications for naturalisation under section 6(2).

All other requirements must be met and there will be a consideration of where the individual has established their home, employment, family.

In addition they must have spent 2 years or 1 year without substantial absences. If the absence is greater than 730 days (section 6(1)) or 450 days (section 6(2)), the period of residence must be at least 3 or 2 years respectively.

The caseworker will consider the reason for the absences:

“o postings abroad in Crown service under the UK government or in service designated under section 2(3) of the British Nationality Act 1981.

o accompanying a British citizen spouse or civil partner on an appointment overseas

The guidance makes clear that an application where the guidance is not met will be extremely challenging: “Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level”.

In the last 12 months discretion can be exercised if the naturalisation application demonstrates that the future intentions requirement is met.

If the absences are 100 days or less, discretion can be exercised.

If between 100 and 180 days where the other residence requirements are met the caseworker will consider family, employment and whether there is a home in the UK.

If more than 100 but not more than 180 days, where the other residence requirements are not met, the individual will need to show their ties to the UK and absences are justified by “Crown service or by compelling occupational or compassionate reasons

If the absences exceed 180 days where the the full qualifying periods are not met, discretion can only be exercised if “the applicant has demonstrated that they have made this country their home and there are exceptional circumstances”.

Applications made where there are excessive absences are complex and are likely to require detailed evidence, particularly where future intentions need to be evidenced in order to persuade a caseworker to exercise discretion.

Contact our Immigration Barristers

For expert advice and assistance in relation to a nationality application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.