ILR application and over 180 days absence question

[mike1628]

Hello everyone, I hope someone could help me with my questions about ILR application.

First of all, I'm a British citizen by birth. My wife was issued with an entry clearance spouse settlement visa on 13 Sept 2013 but did not enter the UK until 19 Nov 2013.

On 11 Feb 2015 both of us travelled to Hong Kong because my wife's father was very ill and she wanted to look after him.

On 19 Aug 2015 we returned to the UK. An absence of 188 days.

On 10 June 2016 she applied for FLR(m) and received her new BRP on 1 Aug 2016 with an expiry date of 4 Feb 2019.

This year on 11 May 2017 we left UK for Hong Kong again because her father's health has deteriorated. Currently we are still in Hong Kong. We planned on staying for 6 months only but my wife now wants to stay until 26 Feb 2018 (to celebrate possibly one last Chinese new year with her father) which means she'll definitely have a long absence from the UK. Will this break the 5 year continuous stay conditions?

On a spouse visa her 5 year stay begins on the date of entry into the UK so does that mean the earliest date she can apply for ILR is on 22 Oct 2018?

Regarding the 180 days absence in each 12 month cycle, should it be like this:

22 Oct 2018 to 21 Oct 2017 (128 days absence)
22 Oct 2017 to 21 Oct 2016 (163 days)
22 Oct 2016 to 21 Oct 2015 (0 days)
22 Oct 2015 to 21 Oct 2014 (188 days)
22 Oct 2014 to 21 Oct 2013 (0 days)

What worries us is that between 21 Oct 2014 to 22 Oct 2015, we left the UK for 188 days in a single time, and from 11 May 2017 to 26 Feb 2018 we will have left the UK for 291 days in a single time.

A total of 479 days within 5 years or 291 days in 3 years.

I've read somewhere that on a spouse visa one should not exceed 180 days absence in a single time.

Will this have an effect on her upcoming ILR application and naturalisation?

Thank you for your time.

[CR001]

There is no absence limit for spouse visas and ILR based on spouse visa.

All absences of 180 days or more must be declared on the ILR form and all the other requirements must also be met (financial, English, adequate accommodation).

[mike1628]

Hello CR001, thanks for your reply.

Are you absolutely certain that there are no absence limits on a spouse visa? I can't find this info on the gov.uk site.

If so, then that's great. But surely there must be some kind of limit? They simply wouldn't let you be absent from the UK for such a certain time frame and still approve your ILR application.

I'm asking this because if my wife is absent from the UK for about 300 days in one sitting, will that have a negative effect on her ILR application?

I understand that we have to declare this absence on the ILR form, but what is the acceptable time frame that is allowed to be absent?

Thanks.

[CR001]

You won't find it on the gov site because there is no limit.

If HO feels she has not been a resident and does not meet the requirements, they are likely to issue a visa extension instead.

You should have evidence of cohabitation (preferably in the UK) for 2 years prior to applying for ILR.

[mike1628]

Thanks again CR001, you've been very helpful.

[gab247]

Hi Mike1628,

I was wondering how your application for ILR went in the end, i am going through a similar situation with a break of 180 days plus in between the spouse visa going into to ILR next year. Our lawyer recommended providing evidence to support why we needed to be out of the country for that long and etc.

Thanks and good luck!