# Absences and ILR / British citizenship



## sghughes42 (May 27, 2013)

I'm getting very confused on the rules for permitted absences towards ILR and citizenship. Can someone please help? This is for a spouse of a British national.

Looking on http://www.ukba.homeoffice.gov.uk/b...naturalisation/spouseorcivilpartnerofcitizen/ it says 270 days in 3 years and no more than 90 in the last year. However, linked from that page is UK Border Agency | Discretion on absences from the UK during the residential qualifying period which says absences of up to 300 days are no problem!

The reason I ask is that my fiancee may get the opportunity to work overseas for an extended period once we are married. This work would be very beneficial to her future career but we don't want to risk getting ILR so want to know the limits of what is allowed.

Also, does any absence from the UK count, or is travel within the EU permitted without limit?

What is the actual situation? Also, the qualifying period is confusing me. Most places on the UKBA website say 3 years for the spouse of a British citizen but also say you can't apply if you don't have ILR which you can't get until after 5 years. Is it just that they haven't updated the rules yet to reflect the change in qualifying period for ILR?

On the other hand, if only the last three years counts for someone married to a UK national, but they have to be married for 5 years to get ILR, does that mean that absences of any length in the first two years don't matter?

Presumably the sequence is fiancee visa > spouse visa > ILR > Citizenship? And something in the region of £4000 of fees in the next 5 years. Not sure why they can't combine ILR with citizenship for someone married to a British person, would make more sense, albeit reduce the contributions to the beer fund...


----------



## Joppa (Sep 7, 2009)

sghughes42 said:


> I'm getting very confused on the rules for permitted absences towards ILR and citizenship. Can someone please help? This is for a spouse of a British national.


You aren't the only one!



> Looking on UK Border Agency | Requirements for naturalisation if you are married to or the civil partner of a British citizen it says 270 days in 3 years and no more than 90 in the last year. However, linked from that page is UK Border Agency | Discretion on absences from the UK during the residential qualifying period which says absences of up to 300 days are no problem!
> 
> The reason I ask is that my fiancee may get the opportunity to work overseas for an extended period once we are married. This work would be very beneficial to her future career but we don't want to risk getting ILR so want to know the limits of what is allowed.


270 days is the rule, but they do allow some discretion, and up to 300 days are allowed without question. Working for a UK employer abroad is looked on favourably, and as a spouse you are expected to accompany her abroad. 



> Also, does any absence from the UK count, or is travel within the EU permitted without limit?


Any absence from UK counts. Business trips in connection with UK employment are allowed.



> What is the actual situation? Also, the qualifying period is confusing me. Most places on the UKBA website say 3 years for the spouse of a British citizen but also say you can't apply if you don't have ILR which you can't get until after 5 years. Is it just that they haven't updated the rules yet to reflect the change in qualifying period for ILR?


Residential qualification for someone with a British spouse is still 3 years. Since the rules change last year, it now takes 5 years for settlement. But since there are still those under the old rules who can get ILR in 2 years, there is no need to change the residential qualification. Also there are a handful of other cases when settlement is attained in less than 5 years, such as a bereaved partner or victim of domestic violence.



> On the other hand, if only the last three years counts for someone married to a UK national, but they have to be married for 5 years to get ILR, does that mean that absences of any length in the first two years don't matter?


Broadly speaking no. But if you are absent more than the majority of your time in the first two years, you may jeopardise your chances for ILR.



> Presumably the sequence is fiancee visa > spouse visa > ILR > Citizenship? And something in the region of £4000 of fees in the next 5 years. Not sure why they can't combine ILR with citizenship for someone married to a British person, would make more sense, albeit reduce the contributions to the beer fund.


Settlement and naturalisation are quite separate, and not everyone who gets ILR will want to become a British citizen. Some nationals are reluctant to become British because their own country doesn't allow dual nationality and cancels their original citizenship if they do. India and Japan, for example. This can have a serious implication as it will reduce future options, and in some cases may affect their property and inheritance rights in their native country.


----------



## sghughes42 (May 27, 2013)

Thanks for the advice, Joppa.



Joppa said:


> ...and as a spouse you are expected to accompany her abroad.


Is this for all trips abroad and for all times she is out of the UK? Or just if she is working for a UK employer.

The reason I ask is that it won't be viable for me to be with her all the time.

As well as the trips to visit her family she is talking about possibly wanting to go back to Taiwan to give birth if we do have children. Also, she has the opportunity to do work with her current employer (a university in Taiwan) but that would involve her being there for a few months at a time. We could keep it under the 300 days but there is no way I could get leave from my job in the UK for that long to accompany her.

Actually, is she allowed to work abroad for a non-UK employer at all during this period? She is highly skilled in a very specific field and to restrict her to UK employers could well affect her long-term prospects.




Joppa said:


> Settlement and naturalisation are quite separate, and not everyone who gets ILR will want to become a British citizen. Some nationals are reluctant to become British because their own country doesn't allow dual nationality and cancels their original citizenship if they do. India and Japan, for example. This can have a serious implication as it will reduce future options, and in some cases may affect their property and inheritance rights in their native country.


I'd not realised that but still, you'd have thought they could offer the option - but then again, that would remove the opportunity for them to charge twice...

Am I right in thinking that if she only went for ILR she would still have to get Taiwanese passports? Are there any other reasons for or against going for ILR but not citizenship.

I believe Taiwan allows dual nationals. It is interesting that you mention Japan as a Japanese friend of hers recently became a UK national - I wonder if she appreciated this...


----------



## nyclon (Apr 3, 2011)

sghughes42 said:


> Thanks for the advice, Joppa.
> 
> 
> 
> Is this for all trips abroad and for all times she is out of the UK? Or just if she is working for a UK employer.


Not for all trips abroad but certainly for trips for extended periods especially a long term work situation. 



> The reason I ask is that it won't be viable for me to be with her all the time.
> 
> As well as the trips to visit her family she is talking about possibly wanting to go back to Taiwan to give birth if we do have children. Also, she has the opportunity to do work with her current employer (a university in Taiwan) but that would involve her being there for a few months at a time. We could keep it under the 300 days but there is no way I could get leave from my job in the UK for that long to accompany her.
> 
> Actually, is she allowed to work abroad for a non-UK employer at all during this period? She is highly skilled in a very specific field and to restrict her to UK employers could well affect her long-term prospects.


The point of a UK spouse visa is that you and your spouse live together preferably in the UK. As Joppa said there is some leeway for 1 spouse to work abroad for a UK employer if the other spouse accompanies him/her. Until she has ILR of citizenship, long absences will potentially raise questions as to whether you are really living together as a couple. 

Maybe you consider living in Taiwan?



> 'd not realised that but still, you'd have thought they could offer the option - but then again, that would remove the opportunity for them to charge twice...
> 
> Am I right in thinking that if she only went for ILR she would still have to get Taiwanese passports? Are there any other reasons for or against going for ILR but not citizenship.
> 
> I believe Taiwan allows dual nationals. It is interesting that you mention Japan as a Japanese friend of hers recently became a UK national - I wonder if she appreciated this...


If she doesn't go for citizenship, yes she keeps a Taiwan passport.

With citizenship she is free to come and go whenever and for as long as she wants. ILR basically expires if you remain out of the country for a period of 2 years.


----------



## sghughes42 (May 27, 2013)

nyclon said:


> Not for all trips abroad but certainly for trips for extended periods especially a long term work situation.


Ah. Drat. That is that plan out.

The rules seem far more strict than would be expected of a UK couple, working apart for a few months isn't that unusual. I understand the need to prove we are a couple, but preventing her from developing her career is more likely to cause us long term problems...




nyclon said:


> Maybe you consider living in Taiwan?


Well, aside from the fact we intend to settle in the UK it would be rather tricky to give up my job to do that - for starters, if we did, how would we qualify for the income requirement?


----------



## nyclon (Apr 3, 2011)

sghughes42 said:


> Ah. Drat. That is that plan out.
> 
> The rules seem far more strict than would be expected of a UK couple, working apart for a few months isn't that unusual. I understand the need to prove we are a couple, but preventing her from developing her career is more likely to cause us long term problems...


But you're not a UK couple. You're a mixed nationality couple and if she wants to live in the UK with her spouse she's going to have to demonstrate that by actually living in the UK with her spouse. She's basically on probation for 5 years. Once she has ILR and or citizenship, she'll have more options but until then, the onus is on her to follow the rules that lead to long term settlement.






> Well, aside from the fact we intend to settle in the UK it would be rather tricky to give up my job to do that - for starters, if we did, how would we qualify for the income requirement?


If her career opportunities lie in Taiwan then maybe you should consider settling there.


----------



## sghughes42 (May 27, 2013)

nyclon said:


> ... She's basically on probation for 5 years. ...


After 5 years, her experience will be out of date and therefore that career option closed to her. When you are doing research in a university situation, taking a 5 year break effectively ends your career.




nyclon said:


> If her career opportunities lie in Taiwan then maybe you should consider settling there.


They don't, but it is a field where there is more experience in Taiwan than in the UK at the moment. If she can carry on building her experience she has the potential to become a leading authority in the UK in the field. If she can't then she will have to look for a new career....

I thought the point of the visa rules were to try and bring talent to the UK? These rules seem aimed at stifling it.


----------



## nyclon (Apr 3, 2011)

sghughes42 said:


> After 5 years, her experience will be out of date and therefore that career option closed to her. When you are doing research in a university situation, taking a 5 year break effectively ends your career.


I guess you have some hard decisions to make about what is more important, her career or your relationship. Being in a relationship with someone of another nationality isn't easy.





> They don't, but it is a field where there is more experience in Taiwan than in the UK at the moment. If she can carry on building her experience she has the potential to become a leading authority in the UK in the field. If she can't then she will have to look for a new career....
> 
> I thought the point of the visa rules were to try and bring talent to the UK? These rules seem aimed at stifling it.


But she's not applying for a work visa, she's applying for a fiance/spouse visa. The point of a fiance/spouse visa is to come to the UK to live with your spouse and have a life together, not to advance your career.


----------



## sghughes42 (May 27, 2013)

I'd argue that in a professional couple (we are both University educated and have skilled jobs) that being able to keep both careers going is important to maintaining the relationship.

Preventing her from following her career is likely to have an impact on her mentally which could jeopardise the relationship.

Quite aside from that, preventing her building her skills will impact on her earning potential and reduce the amount of UK tax she ends up paying.

I get the feeling we have ended up getting together at a bad time. If we'd met sooner and been able to apply this time last year then the shorter time to ILR would have been easier to accept.

One thing I was wondering, if there are any changes to immigration legislation in the future - for example, if it is found these rules breach the EU Human Rights convention as I've read somewhere else may be the case - then would any change apply to us, or would we be stuck with the rules we applied under?


----------



## sghughes42 (May 27, 2013)

Actually, another thought... Her University in Taiwan has a link to the University of Manchester. If she can get Manchester Uni to sponsor her in Taiwan, would it be permitted for her to work there for a period without me going with her?


----------



## sghughes42 (May 27, 2013)

Yet another thought... My employer has factories overseas which produce the equipment we design in the UK. There is a chance I will be expected to go out and oversee the initial production run of a product I am designing.

Would she need to go with me?

That would cause one immediate problem and could cause others.

The main problem is that the factories are in China and Taiwan and China have a slightly difference of opinion as to who is in charge...

The possible problems are that I could need to be there for a few weeks. If she has found a job in the UK she can't be expected to leave her job to come with me. Similarly, if I refuse to go because of this I may lose my job.

Are there exemptions in these cases, or would they be a good reason to ask for discretion to be applied?


----------



## Joppa (Sep 7, 2009)

Your spouse doesn't have to accompany you for every trip and assignment. If it's going to be for a considerable period, such as longer than 6 months, a trip to see each other would help to show continuing relationship.


----------



## sghughes42 (May 27, 2013)

Thanks. So it is only if she leaves the country to work that I need to accompany her?


----------



## nyclon (Apr 3, 2011)

sghughes42 said:


> Thanks. So it is only if she leaves the country to work that I need to accompany her?


No. If either of you are going to be out of the country for a significant amount of time like months, one should accompany the other. You don't have to accompany each other on short 1-2 week business trips or holidays. Also, it's not very convincing that you're in a relationship if you are each in different countries and neither of them is the UK.


----------



## sghughes42 (May 27, 2013)

I'm getting confused here, as Nyclon and Joppa seem to be giving contradictory information here...

Joppa suggests it is only absences of 6 months plus where visits would help to show continuing relationship, Nyclon is suggesting weeks and not just a visit but accompaniment....

Is there any official guidance online to clarify this?


----------



## Joppa (Sep 7, 2009)

There are two separate issues here. For those who hope to get ILR in UK, they need to spend a significant length of time in UK. While the exact length isn't laid down, anything more than 50% is considered problematical. Then there is a question of continuing, durable, genuine relationship. One of the requirements is living together, so they want to see you do spend significant amount of time together. Again no hard-and-fast rules, but they assess on the balance of probabilities if there is an ongoing relationship.


----------



## sghughes42 (May 27, 2013)

That seems to make sense.

Would it seem reasonable for my fiancee to work away from the UK for a period of a few months (I would say under the 90 day guideline to play it safe) on the basis this is a temporary job to gain experience?

Regular contact would be maintained during that period and there would be visits during the period, the frequency depending on the location.

It would be planned and for a purpose and the intention would be to return the UK as soon as it is complete.

Based on your (Joppa's) take on the rules this would seem acceptable. However, Nyclon would appear to suggest this is definitely not acceptable and would result in refusal of ILR.

My fiancee has the possibility of research placements in both Germany and Taiwan. At the moment there is nothing in the UK but this experience would help towards getting work in the UK in her specialist field.

To me, that all seems reasonable - indeed, the experience would help her find work in the UK long-term which is always going to help with a relationship.


----------



## Joppa (Sep 7, 2009)

I'd say until you obtain your ILR, keep overseas stay at a minimum. Once you gain settled status, you can be more relaxed but until you become British citizen, you need to watch out for absences abroad.


----------



## sghughes42 (May 27, 2013)

Depends what a minimum would be I guess. We aren't talking doing this on a regular basis but maybe once or twice in the 5 years, all going towards gaining experience.

In the academic field it would be suicide for a career to drop out completely for 5 years.


----------

