Covid-19 and UK immigration: how will the Home Office treat excess absences?

Background

For those who are outside of the UK and are unable or unwilling to return to the UK, this will increase their number of absences from the UK which has the potential to adversely affect any future application for Indefinite Leave to Remain (ILR) (also known as permanent residence or settlement) and/or naturalisation as a British citizen.

Residence requirements

In order to obtain ILR, applicants must satisfy a number of criteria including requirements relating to residence. These are that they must not have been outside the UK for more than 180 days in any rolling 12 months during the qualifying period for ILR, which is normally five years.

There are also residence requirements for naturalisation which are even stricter. These state that applicants must not be outside the UK for more than 450 days in the five years (or in the case of these married to British citizens, 270 days in the three years), and 90 days in the 12 months, preceding the date of application.

Discretion to waive excess absences

Whereas the residence requirements for ILR are normally a “bright line” test, for naturalisation applications there is limited discretion, in certain circumstances, to allow absences of up to 900 days and 180 days respectively.

The Home Office has released guidance on how it will deal with certain immigration situations relating to Covid-19.  However, the guidance mainly deals with situations where individuals are prevented from travelling to and from China and relates to circumstances where individuals’ visas and travel documents are expiring.

Although it does mention circumstances where individuals are prevented from travelling to the UK due to travel restrictions, and are therefore absent from the UK for longer than planned, this is mainly in relation to the reporting obligations for those who sponsor migrants to work or study in the UK.

There is therefore currently no specific guidance on how the Home Office will treat absences which exceed the proscribed limits for ILR and naturalisation applications which were caused by the pandemic.

Current guidance

If we consider the general guidance for ILR applications, the Home Office does state that it has the discretion to waive excess absences in “serious and compelling circumstances” and gives examples of:

• serious illness of the applicant or a close relative;
• a conflict; and
• a natural disaster, for example, volcanic eruption or tsunami.

It goes on to state that each application will be assessed on a case by case basis and, in practice, the Home Office will normally only waive absences which exceed the 180 day limit by a few days.  The positive news is that Home Office announcements to date does suggest that it considers the current pandemic to be a natural disaster.

In relation to naturalisation applications, strangely, given that it can waive absences up to double the proscribed limits, the Home Office does not make any reference to exercising discretion in the same situations as for ILR applications. It mainly talks about waiving absences which are an unavoidable consequence of the nature of an applicant’s work such as undertaking a position for a UK based business which requires frequent travel abroad. However, it will normally only do this if the applicant has established their home, family and a substantial part of their estate in the UK. The guidance does go on to state that the Home Office will consider waiving excess absences where they were due to exceptional or compelling reasons of a compassionate nature. In our experience, this would normally include similar situations to those taken into account for ILR applications.

What should UK migrants do?

Our view is that, if the excess absences are caused by a migrant being prevented from returning to the UK due to circumstances beyond their control (for example the border is closed and flights are cancelled), or a doctor advises them not to travel for medical reasons, the Home Office is highly likely to waive these absences for both ILR and naturalisation applications.

However, if a migrant leaves the UK and simply chooses not to return due to concerns about Covid-19, we are of the opinion that the Home Office is unlikely to waive any excess absences on the basis that the migrant has not shown sufficient commitment to the UK.

Our expectation is that the Home office will issue guidance on this and other areas of immigration policy shortly. In the meantime, migrants who already have a high number of absences from the UK should ensure that they do not make unnecessary travel plans which could prejudice any future application.