Does 180-day Absence Rule Apply to Spouse ILR applications?

Does 180-day Absence Rule Apply to Spouse ILR applications?

For all inpatient and desperate ones, I would like to quickly answer this article’s question. The answer is ‘No’; the 180-day absence rule does not apply to the spouse ILR applications. It is fantastic news for the couples, who are probably slightly tired of meeting all spouse visa application requirement over the last 60 months.

Now, let me explain my answer in more detail.

Who is Caught by the 180-Day Rule?

The 180-day rule applies to the majority of migrants, who entered the UK in a work-related category.

Work-related categories are those where the migrants got their visas in order work. These categories include, but is not limited to:

1. Point-Based System applicants:
   • These can be Tier 1 (Investors)
   • or Tier 1(Entrepreneurs)
   • alternatively, these can be Tier 1(Exceptional Talent) applicants
   • also, Tier 2 (General) applicants
   • or those, who applied as Tier 2 (Sportspersons)
   • or Tier 2 (Minister of religion)
   • Tier 5 (International agreement)

2. Appendix W applicants:
   • Innovator
   • Global Talent

3. Other Work-Related Categories:
   • a representative of an overseas business
   • UK ancestry
   • retired person of independent means
   • domestic workers in private households

Please note that some of these categories are now closed to new applicants. So, the 180-day rule applies to the above categories and their dependants.

What is the 180-day Rule?

The applicants, when making their Indefinite Leave to Remain application will need to demonstration intention to settle in the UK. If you are not married to a British citizen and would like to make a naturalisation application (apply for British citizenship), you also need to prove that you have this intention. Absences from the UK play are these quite indicators of your intention and play a considerable role in either support your case or not.

As a general rule, the Home Office does not allow more than 180 days’ absences from the UK in a consecutive 12-month period.

Spouse ILR and Naturalisation Applications

However, this 180-day rules does not apply to spouses of British citizens. There is nothing in the Immigration Rules (Appendix FM), which imposes such a requirement on the spouses.

What you CAN find in the Rules is the requirement for the parties to demonstrate that they have an intention to live permanently together.

Here is what the Rules say:

‘The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.’

 

The Dilemma

You probably have spotted the absences dilemma by now. If you are a spouse of a British citizen and were residing outside the UK for an extended period, the Home Office may refuse your application on the basis that you have no intention to live with each permanently. If you have lived abroad WITH your British citizen spouse, then they may argue that you and your spouse lack the intention to live permanently together IN THE UK.

The Solution

The solution may be a straightforward one. First of all, if you have absences of more than 180 days in any consecutive 12 months, do NOT ignore it, hoping for the best.  Ignoring potential problems in the application are very expensive. If the Secretary of State refuses your application, she’ll keep your money. Secondly, in order not to lose your right to remain in the UK and not to become an overstayer, it is highly likely that you will need to go through a lengthy and expensive appeal process.

The way to deal with this situation is addressing it openly and straightforwardly. If you lived abroad due to some health condition, try and get a medical report from your GP to confirm this. If there were particularly difficult family circumstances, do explain them to the decision-maker. Ideally, you need to support your explanations with relevant documents. For example, if there was a bereavement in the family, support your letter by a death certificate. If you went abroad to support your sister during her divorce – say so in your supporting letter and explain how you maintain contact with your spouse in the UK.

If you are not sure how long you were outside the UK, you can make a subject access request to get a copy of your Home Office file. They are likely to have records of all your entries and exits to/from the UK in the last five years. This application is free.

Further Help

If you would like to apply for a UK visa in near future, you need to understand the rules first. UKVisaSuccess.com online courses will help you do this. After attending the course you need, you’ll understand UK visa requirements and common pitfalls in the applications. This will dramatically decrease the chances of refusal of your UK visa application.