SPOUSE ABSENCE EXCEEDS

[Hamza167]

I and my dependents (spouse and five kids) applying for naturalisation application in June 2020.
We all meet the days requirement 450 days absence for last 5 years and 90 days in last one year, except my spouse. Her absence number exceeds in both cases.
We have established UK as home and My eldest son is going to University, My second son is in College and my daughters are going to Schools. All my kids are going to educational institutions for more then six years in this country. We are living in the same house in a prestigious locality for more then six years. We have established our business and made investments significantly here. We (both I and my spouse) are paying taxes on our income in all this six years.
My question is the above evidences will satisfy for the exemption of my spouse and give her absence allowance under 900 days limit for last 5 years and 100 days plus limit for last 1 year.
Highly appreciate the moderator or senior members reply.
Regards.

[secret.simon]

How much has she exceeded by? And does she meet the physical presence requirements (being physically present in the UK at the start of the five year period?

[Hamza167]

Yes she was present at the start of the five years period.(we all came together and also living together).
Her main reason for more absence is due to visit of elderly parents back home who have got medical conditions and needs attention)

She is absent for about 690 days in the last 5 years period and about 120 days in last one year period. (I have taken June 2020 , first week as my application for naturalisation filing date and calculated the above days accordingly).

Appreciate your suggestion.

[secret.simon]

Except if your spouse meets the requirements of the first bullet point below (I presume that the other bullet points do not apply), I do not see her application getting approved. She will need to wait until her absences come down significantly.

(Page 16)Where the applicant has absences of between 480-900 for applications under section 6(1) of the British Nationality Act 1981, or 300-540 for applications under section 6(2) and otherwise meets the requirements you must only consider exercising discretion where the applicant has established their home, employment, family and finances in the UK, and one or more of the following applies:

• at least 2 years residence (for applications under section 6(1)), or 1 year (for applications under section 6(2)), without substantial absences immediately prior to the beginning of the qualifying period. If the period of absence is greater than 730 days (for section 6(1)) or 450 days (for section 6(2)) the period of residence must be at least 3 or 2 years respectively

• the excess absences are the result of:
o postings abroad in Crown service under the UK government or in service designated under section 2(3) of the British Nationality act 1981.
o accompanying a British citizen spouse or civil partner on an appointment overseas

• the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a
multinational company based in the UK with frequent travel abroad

• exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation now, such as a firm job offer where British citizenship is a statutory or mandatory requirement

Where an applicant’s absences exceed those covered above it is highly unlikely that discretion would be appropriate. You should normally refuse the application and advise them to re-apply when they are able to bring themselves with the statutory requirements, unless there are specific circumstances that warrant exceptional consideration at a senior level.

[obormot]

I consulted extensively on a similar case.
It seems that as a minimum she should wait until she lived in UK for 7 years and until her absences are below 90 days in last year (then there is no guarantee for approval, but at least there are some good chances).
In her case, she can also wait until you get citizenship, and apply as a spouse - if it makes for less days abroad when applying using 3 years period.
There is no financial reason to apply together - it costs the same, and there is no problem with kids' application if it is only you and kids applying, as long as she has ILR.

[Hamza167]

Thanks secret.simon and obormot.

I really liked your suggestion secret.simon/ obormot.

I gone through the guidance. Under 6(2) It states that if the absence of the spouse (of British Citizen) exceeds 450 days and he/she is resident of UK for last 5 Years then he/she is eligible for naturalisation.

My wife is a resident since April, 2014 and got her ILR on May 2019.

As I and my kids (qualify under the rules) once get the British citizenship then my wife can immediately apply for her naturalisation. (as she is resident of UK for more then 6 years)

Please correct me if I am wrong and guide me with your valued comments.

Highly appreciate your help.
Regards.

[secret.simon]

Keep in mind that if you apply in June, you will likely become a British citizen only by November-December (factoring in the time for the decision on the application and then the wait for the citizenship ceremony).

So will your wife meet the three-year physical presence requirements and the three and one year absence requirements in December 2020? Will her one-year absence have come down in the meanwhile? I would suggest that she not travel abroad until she makes her application after your British citizenship.

[obormot]

Spousal route still requires 270 days absences max in last 3 years before applying (and max 90 in last year). But if she was in UK for more then 5 years you can apply for discretion (same as 7 years in general case). You will have to calculate which option looks better (? less days per year of absence on average?) - once you become citizen she can apply either through 5 years or through 3 years rule.

[Hamza167]

Thanks Secret.Simon/ Obormot,

One last clarification that once my wife applies after my British Citizenship (hopefully by December 2020),
her time clock does not get effected.

She came as dependent under tier 1 Entrepreneur in April 2014 got her ILR in May 2019 with me along with our kids.

My understanding from your replies she can immediately apply (probably in December 2020 after my citizenship), as her time clock does not get reversed to zero under spousal route 6(2), (as in that case absence of over 450 days acceptable of 5 years residence status) subject to she completes her last year with only allowable absence of 90 days.

Your final say will really help me.

Best regards.

[obormot]

I am not sure what you mean by time clock.
Once you become a citizen, she can apply as a spouse (next day). But she can still apply in a regular way too. It is her choice (but she has to clearly state it in application).
In BOTH cases they expect her to be abroad not more then certain number of days in last several years (450/480 in last 5 years for regular way, or 270/300 in last 3 years for spousal way).
If she applies as a spouse, and was abroad more then 300 days but less then 450 days in last 3 years, and she was in UK for at least 4 years total, she can apply for "discretion" (if she was abroad between 450 and 540 days in last 3 years, she needs to reside in UK for at least 5 years total to apply for discretion).
Clearly, in her case those requirements of 4/5 years will be satisfied.
However, discretion is not a guarantee, so her application can be refused.
Note also, that this rule is about absences in last 5 or last 3 years.
There is also an INDEPENDENT requirement of no more then 90 days out of UK in last year.
Even though there are discretion rules for it also, I was advised that it is much better if you ask for a discretion on one issue only (so if she was abroad too much for last 5/3 years, then she better makes sure that her absences are within 90 days in last year).

[Hamza167]

Thanks a lot to everyone on the forum.

But especially Obormot and Secret.Simon. You guys are splendid. Highly appreciate your help and support.

Best regards