Discretion for Excess Absences (Frequent Flyer)

[EEA-Citiz]

Hi,

I'm a Spanish citizen and I'm preparing my application for Naturalisation. I'm following the 5+1 procedure.

I've done a lot of travelling as my job required me to visit customers in Asia/Europe/US. I've spent 600 full days outside the UK (I removed from the calculation both the leaving & arrival days) during the last 6 years

I have spent about 100 full days abroad during the last 12 months period (which is not completed yet)

Now, I've read the document "AnnexB to Chapter 18) which says:

4.1.2 Total Absences of up to 900 (540) days - consider disregarding only application is otherwise in order, and if applicants have established their home, family and a substantial part of their estate here. We should also expect:
[..]
c. the excess absences to have been an unavoidable consequence of the nature of a career (for example a merchant seaman or someone in UK-based business or employment which requires frequent travel abroad); or
[..]

Now, in addition to my absences states, it's worth saying that I also co-own a house (bought together with a friend).
To add a bit more pain, I'll probably be unemployed for a month before I apply for naturalisation.

Now, what I wonder...
- Should I count the total absences for the overall 6 years, the last 5 years (thus including the last 12 months) or 5 years before the last 12 months? In any case it wouldn't push the number to less than the 480 "disregard" threshold - however it would show a smaller number, should it help.
- Is it very likely that HO will disregard my absences?

[Gyfrinachgar]

Should I count the total absences for the overall 6 years, the last 5 years (thus including the last 12 months) or 5 years before the last 12 months?
Is it very likely that HO will disregard my absences?

Total absence in the last 5 years from the date of application (e.g. Dec/2007-Dec/2012) should not exceed 450 days, in the last 1 year from the date of application (e.g. Dec/2011-Dec/2012) should not exceed 90 days. There is indeed room for discretion, but that is always a gamble and not easy to predict. It depends on how much you exceed the thresholds, on the arguments/evidence you give, and on the caseworker handling your file.

it's worth saying that I also co-own a house (bought together with a friend).

To be on the safe side when considerably exceeding the guidelines, you need to prove that you have established "home, family and a substantial part of your estate" here - co-owning a house with a friend alone doesn't really qualify.

To add a bit more pain, I'll probably be unemployed for a month before I apply for naturalisation.

Sorry to hear that, but the good news is that it will have no impact on your application for naturalisation.

[EEA-Citiz]

Thanks for the answers,

So to be sure I understand correctly, HO asks me to be in the country for 6 years (5 + 1) but then only counts my trips for only the last 5 years ignoring the first year. Is this correct?

Also, it would be such a shame to loose the opportunity to get citizenship as if trips counts so much, I will be able to get citizienship only in 5 years and my profession requires lot of weekly trips abroad.

Do you reckon that a lawyer could help a lot here or is it just down to me writing a good letter explaining the reasons for my absences and my situation (I would add a letter from my current company explaining the reasons of my trips)?

[Gyfrinachgar]

So to be sure I understand correctly, HO asks me to be in the country for 6 years (5 + 1) but then only counts my trips for only the last 5 years ignoring the first year. Is this correct?

That is correct.

Do you reckon that a lawyer could help a lot here or is it just down to me writing a good letter explaining the reasons for my absences and my situation (I would add a letter from my current company explaining the reasons of my trips)?

I really don't know. Lawyers (supposedly) have a lot of experience, they know tricks & ambages and they can also apply much more pressure than a lone applicant. However, they cost a lot of money and there is absolutely no guarantee of success. If one doesn't fulfill the formal requirements, one automatically moves into the realm of caseworkers discretion - and that realm doesn't hold any guarantees for anyone.

How long have you been out of the country? For example, an absence of 460 days in the last 5 years wouldn't bother HO at all. If on the other hand you would have been abroad >1000 days, even the very best of lawyers couldn't do a thing. You mentioned earlier that you have been away 600 days within the last 6 years, so how much was in the last 5 years?

[EEA-Citiz]

Hi Gyfrinachgar,

thanks for your answers.

I count around 550 days our of UK in the last 5 years... of which:
- less than 100 in the last 1 year (I'm aiming at 98 days).
- About 350 where weekly business trips.

I totally agree with what you said, a lawyer gives a help and it comes with a cost.

[Gyfrinachgar]

The 98 days in the last year shouldn't be a major problem, I think until 100 days they exercise discretion nearly automatically. However, 550 days in the last 5 years will be a problem. Maybe an immigration lawyer is indeed the best way forward here.

[Jambo]

I would think that as long as you show ties to the UK (for example the property you purchased) and show that the majority of the trips were business related and part of the nature of your job (better to get a letter from employer if you can) then you should be fine (even without a lawyer).

I presume you are aware that Spain doesn't allow dual nationality (with the UK at least).

[EEA-Citiz]

Hi Jambo,

thanks for joining the discussion. I'm aware that Spain doesn't allow dual nationality like other countries. I spend my life here (and taxes) in UK & I think it's just fair to be a citizen. Spain can wait for better times..

Now I'm a bit confused, should I use a lawer or not. I found them for around 500 GBP however I'm not sure what help can they give me - do they just write a "nice" cover letter or do they actually do something more and helpful?

[Jambo]

Well, this "nice" letter might be the weight that swings the caseworker decision in your favour. You are paying for their expertise and experience from similar cases. It is all a matter of probabilities and if you are risk averse or not.
100 days above the threshold is not a big difference especially if you can justify it by the nature of your work but is still comes down to the discretion of the caseworker which is always an unpredictable factor.

[mlove]

There are immigration lawyers that offer no win no fee guarantees.

I used one for my ILR and he made it quite clear that I needed to meet a certain criteria ( no criminal charges, no trips more than 90 days at a time ), in order to have a shot. Excessive absences were something he was confident he could deal with for ILR.

Fortunately, he won and I ended up paying him his 600 quid ( well worth it ).

If my naturalization were not straight-forward, I would have definitely rung him again for his opinion.

[EEA-Citiz]

I rang up few lawyers yesterday and they are all in the order of 800+ GBP. This is a bit annoying knowing that all I need is a cover letter and that the final decision really depends on the case worker.

mlove, may I ask you for the contact detail for your lawyer?

Also, seems like you had a similar situation to mine (and ended up well for you!), how many days did you counted as absences?

Thanks!!

[Jambo]

I must stress that there is a difference between naturalisation and settlement applications where business related travel is normally not counted. This is reflected in the new ILR rules effective today that allow up to 180 days of (business related) absences a year.

Naturalisation is a different story and the consideration for discretion is based on different factors.