This is a question which often arises in the field of immigration. In previous articles we explained about the rather uneven rules on this subject. Working visa rules in many cases have somewhere a requirement that the migrant is not outside the UK for more than 180 days per 12 months, but the rule is not in every case straightforward: it is sometimes necessary to provide appropriate reasons for the absences. In some but not all cases dependant family members are subject to the same rules as the main applicant and, in the case of spouse/partner visas, there are – rather strangely – no clear stated requirements about it at all.
But it is very important to understand that for working/investment visas these requirements relate specifically to applications for settlement (eg indefinite leave to remain or permanent residence). It is not until the settlement stage that the number of days outside the UK comes to be assessed – which leads to the interesting reality that migrants with some types of visa can continually extend their leave (as long as the rules remain as they are) without encountering any 180-day rules.
But these 180-day rules are fairly complicated, and you might want to obtain good legal advice before attempting to navigate your way through them; a misunderstanding of the wording can have fatal consequences.
And of course many migrants want not only to acquire settlement: they also ultimately want British citizenship. British citizenship entails several advantages that settlement does not – including the obviously important one of being able to stand for Parliament.
The law about British citizenship is quite different from the rules about settlement and it comes in quite separate places: ie in the various British nationality Acts. There is no strong “intermeshing” between the rules for settlement and the law for British citizenship: something that some people have found rather confusing. But the two different bodies of provisions were no doubt written by different people at different times in different places, which might account for the apparent lack of coherence.
The classic case which might illustrate this is that of the excellent Tier 1 Entrepreneur or the excellent Tier 1 Investor, who manage to acquire settlement under an accelerated route, ie in less than five years. Such migrants can acquire settlement in three, or even two, years. But how quickly can such migrants acquire British citizenship?
The basic scheme (with a few possible variations) for British naturalisation is that the applicant has spent at least five years in the UK with immigration leave and that they have held settlement for at least one year. A moment’s intense thought will reveal that a migrant who has acquired settlement in less than five years will nonetheless have to wait for five years before they can apply for British citizenship.
But this is not all: the requirements about days outside the UK are stricter for British citizenship applications than they are for settlement applications, which is why those who are aiming for – or think they may be aiming for – British citizenship need to understand the law at an early a stage as possible.
A migrant may have met the requirements for settlement by being outside the UK for slightly less than 180 days per 12 months but if they apply for British naturalisation their application might be refused because the rules are different.
It is the case that many people come to the UK – as students for example – and they subsequently extend their leave, and then they acquire a family visa or a working visa, and then it occurs to them that they feel part of British life and they want to apply for naturalisation. Not everyone is able to follow a “life plan”, and it happens with some people that they realise they spent too much time outside the UK without understanding the consequences at the time.
Such situations can in many cases be fixed but – as we said above – it is always best to acquire understanding of the relevant law as early as possible.