23 September 2021 - Article
The coronavirus has thus far demonstrated that it does not discriminate, and has in essence put an indefinite halt on UK immigration. All UK visa application service centres have been closed until further notice, and the UK is no longer accepting visa applications from a myriad of countries all over the world.
The Home Office has recently alleviated certain immigration requirements to reflect the travel restrictions and quarantine measures resulting from the coronavirus lock-down. This is highly reactive and temporary, and mostly relates to the reporting duties of UK licence holders who sponsor migrant workers and students. Furthermore, adherence to these makeshift provisions may not give blanket protection against failing to meet the standard requirements for future immigration applications under the UK Immigration Rules.
The coronavirus has created great uncertainty for those individuals who hold UK visas but are currently outside of the UK; whether that be on holiday, visiting family, for work, or any other reason. Many of our international clients with UK visas cannot or have chosen not to re-enter the UK, which in turn may result in their absences increasing to an amount not permitted under the Immigration Rules.
Applications for indefinite leave to remain (ILR) and applications to naturalise as a British citizen have restrictions on the number of permitted absent days from the UK. Those applying for ILR cannot have been outside of the UK for more than 180 days in any 12 month period during their 5 year qualified period.
All naturalisation applicants must not have been absent from the UK for more than 90 days in the 12 months preceding submission of their application. Applicants married to a British citizen have a 3 year qualifying period (immediately preceding the date of their application) with a 270 day limit on absences, whereas applicants not married to British citizens have a 5 year qualifying period with a 450 day limit.
Will there be a concession for unauthorised absences?
Precedent shows us that an amnesty may be granted for those individuals whose absences exceed the maximum number allowed due to the exceptional circumstances surrounding the pandemic. This of course will wholly be at the discretion of the Home Office. There is pre-existing detailed guidance published by the Home Office pertaining to the strictly defined discretion normally exercised in naturalisation and ILR applications, where absences surpass the limit.
The Home Office has yet to specifically address how absences exceeding the permitted limit (caused by the coronavirus pandemic) will be treated.
We can only speculate at this point in time, however it is more likely than not that the Home Office will disregard superfluous absences in circumstances where applicants were prevented from returning to the UK for reasons outside of their control (i.e. medical advice to self-isolate, border closures, flight cancellations), as they are likely to fall within the remit of excused absences due to ‘serious and compelling’ reasons. This will have to be evidenced through documents such as official medical correspondence, border closure information from an official government source, airline flight cancellation correspondence, etc.
If, on the other hand, a UK migrant chose not to return to the UK (due to fears surrounding the coronavirus) when it was possible to do so, this may be detrimental to an ILR or naturalisation application. It is improbable that the Home Office will waive excessive absences caused by a voluntary decision not to return to the UK when it was possible to do so.
What can I do?
It is advisable for all UK visa holders currently outside of the UK to retain all immigration documents and if applicable, any of the documents mentioned above. It would also be beneficial to keep an up-to-date record of absences from the UK alongside corresponding travel documents, in case certain absences are queried by the Home Office in a future application.
The impact of coronavirus on UK immigration is changing on a daily basis, and our advice will differ depending on a migrant’s individual circumstances and/or immigration history. Please contact our Immigration team with any queries you may have. They are here to help during this uncertain time.
Click here to read more insights on how we can weather the coronavirus outbreak with you.