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Absences for spouses and partners

26 May 2021 Amna Ashraf Blog

Whilst holding the positive decision in their hands, the stress of the process starts to fade, and clients often shift their focus on the practical aspects of their shiny new visa. A question often asked at this stage is: How many days am I allowed out of the UK? My response: no limit when applying for an extension or indefinite leave to remain, but there is one if you subsequently apply for citizenship. I will explain why I say that.

When applying for further leave to remain or indefinite leave under the spousal route, Appendix FM does not contain any specification as to the maximum number of days allowed outside of the UK. This is not to say that the visa holder can simply rock up one day out of the year and spend the rest of their time outside of the UK. It simply means that as long as the absences are for good reasons and in line with the couple’s intention to live together permanently in the UK, they are fine.

So what is a good reason? Subjective surely, and home office seem to agree. Guidance on this is nestled on page 26 of a 96 page long Family Policy document:

“Good reasons could include time spent overseas in connection with the applicant’s or their partner’s work, holidays, training or study. If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the rules”

Cognisant of this ‘good reason’ and ‘intention’ criteria in mind, my advice to clients is to keep records of all trips outside of the UK, with or without their partner. Each trip should be evidenced by flight records and reasons. For example, a family holiday could include flight tickets, hotel bookings and some photographs. A business trip could include flight tickets and booking confirmation for the particular event that was attended. For solo trips, keep some evidence of communication too. These can be in the form of whatsapp records, facetime calls, or old fashioned emails. All of this evidence can then be pooled together to paint a supportive picture when applying for the next visa.

After obtaining the indefinite leave to remain, the visa holder can apply for British citizenship. This can be applied for right away if still married to the British citizen. If the marriage breaks down, then a wait of one year after settlement is required. Absences do matter in a British citizenship application.

If applying on the basis of being married to the British citizenship, then you cannot have more than 270 days outside of the UK in the 3 years before the date of application. If not applying on the basis of marriage, then you cannot have more than 450 days outside of the UK in the 5 years before the date of application. In either case, additionally, the visa holder cannot have more than 90 days of absence in the year before the date of application.

There is some discretion allowed in some special cases, but as most immigration practitioners will tell you, reliance on discretion when it comes to Home Office is never a good thing. The best practice is therefore to plan ahead and keep a counter on those days if citizenship is the eventual aim.

If you require help with making spousal visa application from within or outside the UK, or a citizenship application, send me an email enquiry. You can also watch some helpful webinars and other blogs on family migration.

 

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