Excessive Absences in an Application for Naturalisation
In This Article
1. Meeting the Absence Requirement and Avoiding Excessive Absences for Naturalisation
2. Home Office Guidance on Timing and Excessive Absences
3. Maximum Allowable Absences for British Naturalisation Applications
4. Calculating Absences from the UK for Naturalisation Applications
5. Discretion for Excessive Absences in Naturalisation Applications
6. Contact Our Immigration Barristers
7. Frequently Asked Questions
8. Glossary
1. Meeting the Absence Requirement and Avoiding Excessive Absences for Naturalisation
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. When applying under section 6(1) 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. For both types of applications an applicant will need to satisfy an absence requirement, ensuring that excessive absences do not affect their eligibility.
The absence requirement is a key factor in naturalisation applications, and excessive absences could lead to a refusal unless discretion is exercised.
2. Home Office Guidance on Timing and Excessive Absences
The Nationality policy: Naturalisation as a British citizen by discretion, contains guidance relevant to the timing of an application and excessive absences.
3. Maximum Allowable Absences for British Naturalisation Applications
The first matter to consider will be the timing of any application to naturalise.
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. Alternatively, 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:
- who are applying only on the grounds of Crown service;
- spouses or civil partners of British citizens in Crown or designated service overseas; or
- applicants who are technically absent from the UK.
In planning an application an applicant will need to identify the start of the qualifying period. In order to calculate this an applicant will need to take the day after the application date minus the length of the qualifying period.
The Nationality and Borders Act 2022 introduced the power to treat the applicant as having fulfilled this requirement if there are special circumstances arising in a particular case. Special reasons may relate, for example, to the applicant’s health.
The guidance expands and reads:
Discretion to treat the requirement to have been in the UK on the first day of the residential qualifying period as fulfilled should normally be exercised if one or more of the following is met:
- the applicant was prevented from being in the UK because they had been removed from the UK, and the decision to remove them was later overturned
- the applicant was incorrectly prevented from resuming permanent residence in the UK following an absence
- the applicant is normally resident in the UK but there were exceptional reasons why they could not return from abroad at that time, such as illness, or travel restrictions due to a pandemic
- the applicant is a current or former member of the armed forces.
A caseworker will need to see appropriate evidence; those applying and arguing this point may wish to seek legal advice.
On occasions an applicant may have inadvertently applied on a date when they did not meet this requirement. The application form now requires applicants to confirm they agree that the Home Office uses a different date as the date of application, if this would work to the advantage of an applicant.
4. Calculating Absences from the UK for Naturalisation Applications
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 or travel document available, 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.
To discuss your naturalisation application with one of our nationality barristers, contact our British citizenship lawyers on 0203 617 9173 or complete our enquiry form below.
5. Discretion for Excessive Absences in Naturalisation Applications
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 1981 allows for discretion to be exercised in respect of the residence requirement provided all other requirements are met. However, whilst there is some discretion to waive requirements, instructions to caseworkers make it clear that ‘this cannot be done to the extent that the requirements are ignored.’
Where an applicant exceeds the permitted absence by 30 days or less, Home Office policy states that discretion will be exercised unless there are other grounds on which the application falls to be refused.
For other periods of absence, the guidance reads as follows:
“Where the applicant has absences of between 480 and 900 days for applications under section 6(1) of the British Nationality Act 1981, or 300 and 540 days for applications under section 6(2) and otherwise meets the requirements you must only consider exercising discretion where the applicant has established their home, employment, family and finances in the UK, and one or more of the following applies:
- at least 2 years residence (for applications under section 6(1)), or 1 year (for applications under section 6(2)), without substantial absences immediately prior to the beginning of the qualifying period – if the period of absence is greater than 730 days (for section 6(1)) or 450 days (for section 6(2)) the period of residence must be at least 3 or 2 years respectively
- the excess absences are the result of:
- postings abroad in Crown service under the UK government or in service designated under section 2(3) of the British Nationality Act 1981.
- 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 a multinational company based in the UK with frequent travel abroad
- exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement
- the applicant was prevented from being in the UK because they had been removed from the UK, and the decision to remove them was later overturned
- the applicant was incorrectly prevented from resuming permanent residence in the UK following an absence
- the excess absences were because the applicant was unable to return to the UK because of global pandemic
Where the applicant’s absence exceeds those covered above as a result of Crown Service overseas, discretion should normally be exercised where:
- before an overseas posting the applicant was resident in the UK and Islands
- the excess absence was due to either:
- a period of absence from the UK and Islands on a posting on Crown service
- a period of absence from the UK and Islands accompanying a spouse, civil partner, partner or parent on a posting on Crown service”
The guidance makes clear that an application with absences in excess of the periods above 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 applications under section 6(1), discretion should only be exercised in respect of ‘final year absences’ (those incurred during the final year of the qualifying period) if the future intentions requirement is met.
In applications under section 6(2), or in applications where the future intentions requirement is met, there is discretion. The guidance on the exercise of the discretion reads:
“Total absences:
- of 100 days or less; exercise discretion
- between 100 and 180 days, where the residence requirement across the qualifying period is met – discretion is only appropriate where the applicant demonstrates strong links through the presence of family, employment and their home in the UK
- of more than 100 days but not more than 180 days where the residence requirements over the full qualifying period are not met – consider exercising discretion if both the following apply:
- applicants have demonstrated that they have made this country their home by establishing a home, employment family, property and finances in the UK
- the absence is justified by Crown service or by compelling occupational or compassionate reasons, including inability to travel because of a global pandemic
- exceeding 180 days where the residence requirements over the full qualifying period are met – consider exercising discretion if the applicant has demonstrated that they have made the UK their home
- exceeding 180 days where the residence requirements over the full qualifying period are not met – you must only exercise discretion where the applicant has demonstrated that they have made this country their home and there are exceptional circumstances such as Crown Service”.
Applications made where there are excessive absences are complex and are likely to require detailed evidence and explanation in order to persuade a caseworker to exercise discretion.
6. 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.
