One important condition that most UK visa holders intend to settle in the UK is the permitted number of days absent from the UK throughout the qualifying period. They need to keep an eye on their absences from the UK to ensure that they do not excessive absences.

For example, under the 10-year rule under paragraph 276(b) of the immigration rules, a migrant should have been lawfully continuously resident in the UK for at least 10 years, but in the 10 years should not have spent more than 540 days out of the UK.

For a nationality application the migrant should have been lawfully in the UK for at least 5 years, must have had ILR at the end of the period of temporary leave, and should not have been out of the UK for more than 450 days in the last 5 years and in the year of the application no more than 90 days.

 

Issues become more concerning for those who has above permitted absences due to travel restrictions. In such circumstances, the answer is different for those who are on a 10 year long residence route and those who are on different PBS routes, such as Tier 1, Tier 2 and Tier 5.

The Home Office has not provided any specific guidance at this stage on how it will treat absences that are due to the coronavirus outbreak and that exceed the requirements for ILR and naturalisation applications.

There are many instances where periods of absences from the UK could affect an application under the immigration rules for settlement. However, in the midst of a world crisis, it is reasonable to conclude that in the same way that the Home Office has previously made exceptions for people caught in humanitarian crises, that it may exercise discretion for people affected by the current situation. It is important to retain evidence to demonstrate reason of excessive absences due to coronavirus outbreak as below:

 

• Evidence of the restrictions in place and your attempts to return;

• Evidence of the reasons you left the country in the first place, as this might play an important role;

• Evidence of lockdown of accommodation if you are student visa holder;

• Evidence of health history in the hospital due to COVID-19

The PBS visa holders or business visa holders should be more cautious as these routes have stricter rules in respect of absences. The Rules and the Guidance state that even absences for compelling and compassionate reasons are to be counted towards the overall limit of absence.

 

However, even if migrants themselves have compelling and compassionate reasons for absences, it might not be adoptable if they were able to return to the UK but decided not to do so due to their concerns about coronavirus. Therefore, return as soon as possible after the restrictions are lifted, as this is one of the criteria the Home Office will look at when applying their discretion.