450 days requirement and study abroad question

[kammak]

Hi All,

I'm hoping to get my settled status under the EU Settlement Scheme later this month when I will have lived in the UK for 5 years and would like to apply for British citizenship in a year's time.

I'm yet to figure out the number of days I was absent from the UK in the past 5 years, but I'm pretty sure they will exceed the 450 days requirement as I spent a year studying abroad as part of my degree at a UK university. I've done some research, but haven't managed to find a definite answer - would study abroad as part of a degree based at a UK university be considered an important enough reason for the Home Office to disregard the absence?

Thank you very much for taking the time to reply.

[zimba]

No. The discretion only applies when you are not far from the 450 days limit

[kammak]

Thank you, Zimba. I've done some more research and I'd be really grateful for some advice!

I've created a timeline assuming that I'll get my settled status later this month and assuming that I'll only be away from the UK for a two week holiday between now and September 2020 when I'll be able to apply for citizenship by naturalisation.

September 2014 - started university in the UK
June 2016 - August 2017 - mostly out of the UK for my year abroad
June 2018 - finished university in the UK
from June 2018 - working full-time in the UK

Assuming I wanted to apply for citizenship in September 2020, I shouldn't have been away from the UK for more than 450 days between September 2015 - September 2020.

I've done a quick count and I will have been away from the UK for 535 days during this period with 350+ days away due to the fact I was studying abroad as a compulsory part of my degree at a UK university, so less than 200 days due to other reasons such as holidays, visiting family etc. Question 1 Is there any chance my absence due to year abroad could be disregarded?

If I waited until April 2021 to apply, I'll be able to get the number of days out of the UK down to 486, which is so close to 480 days, which are the total number of absences normally disregarded according to the Home Office Guide. I've read on FreeMovement.org.uk that if the applicant's been away for between 480-730 days, the Home Office's approach is usually to exercise discretion if the applicant has been resident for the previous seven years (but I'll be on 6 and a half years), without substantial absences within the first of those seven years (I was away for 135 days during my first year in the UK), so I'm not sure if that would work for me. Question 2But since I'll only be 6 days above the 480 days limit, I'm wondering if there's any chance my absence will also be disregarded?

Sadly, I won't be able to get my absences to under 450 days until March 2022 (March 2017 - March 2022), which is when I came back to the UK for a few weeks during my year abroad so I would be able to apply for citizenship then. The number would be down to 236 + days I will be away from the UK between now and March 2022, but definitely not more than 450 days in total as I'd make sure to keep the number as low as possible. However, it means I'd have to wait 1.5 years to apply and I'd love to be able to apply earlier, but obviously I don't want to risk losing the application fee.

I'd appreciate an honest advice on whether there's any chance of my application being successful if I apply in September 2020 with 535 days in total outside the UK (350+ days due to my study abroad) or if I should wait until later (April 2021 or March 2022 to be completely safe)?

Thank you so much!

[kammak]

If I waited until April 2021 to apply, I'll be able to get the number of days out of the UK down to 486, which is so close to 480 days, which are the total number of absences normally disregarded according to the Home Office Guide. I've read on FreeMovement.org.uk that if the applicant's been away for between 480-730 days, the Home Office's approach is usually to exercise discretion if the applicant has been resident for the previous seven years (but I'll be on 6 and a half years), without substantial absences within the first of those seven years (I was away for 135 days during my first year in the UK), so I'm not sure if that would work for me. Question 2But since I'll only be 6 days above the 480 days limit, I'm wondering if there's any chance my absence will also be disregarded?

I've done a bit more research and read the Nationality policy: Naturalisation as a British citizen by discretion document.

It states 'You must only count whole days' absences from the UK. You must not count the dates of departure and arrival as absences. For example, a person who left the UK on 22 September and returned on 23 September will not be classed as having been absent from the UK.', so I had a look at my absences count and I realised if I count my dates of arrival as being present in the UK, I will be able to bring the number of days absent to under 480 in April 2021! I need to sit down and carefully count the number of days I'll be out of the UK manually, but I think I'll be able to go down by 10 days, so I'll be on 476, so the discretion should work. It also means I might have no other choice but not leave the UK until I submit my application...

[kammak]

If I waited until April 2021 to apply, I'll be able to get the number of days out of the UK down to 486, which is so close to 480 days, which are the total number of absences normally disregarded according to the Home Office Guide. I've read on FreeMovement.org.uk that if the applicant's been away for between 480-730 days, the Home Office's approach is usually to exercise discretion if the applicant has been resident for the previous seven years (but I'll be on 6 and a half years), without substantial absences within the first of those seven years (I was away for 135 days during my first year in the UK), so I'm not sure if that would work for me. Question 2But since I'll only be 6 days above the 480 days limit, I'm wondering if there's any chance my absence will also be disregarded?

I've done a bit more research and read the Nationality policy: Naturalisation as a British citizen by discretion document.

It states 'You must only count whole days' absences from the UK. You must not count the dates of departure and arrival as absences. For example, a person who left the UK on 22 September and returned on 23 September will not be classed as having been absent from the UK.', so I had a look at my absences count and I realised if I count my dates of arrival as being present in the UK, I will be able to bring the number of days absent to under 480 in April 2021! I need to sit down and carefully count the number of days I'll be out of the UK manually, but I think I'll be able to go down by 10 days, so I'll be on 476, so the discretion should work. It also means I might have no other choice but not leave the UK until I submit my application...

Apologies for so many posts in a row. I've recently started properly getting ready to apply for my settled status and then citizenship, and want to make sure I understand all the rules as soon as possible so as not to miss my chance of successfully obtaining British citizenship by staying outside the UK for one day too long, because I'm not aware of how many 'absence days' I have left.

I've just properly recalculated my absences from the UK making sure I count travel days as days IN as per the Nationality policy: Naturalisation as a British citizen by discretion document I quoted in my post above.

I was relieved to see that applying this rule brought the number of absences down to 456 days (from 486) if I hold off and apply for citizenship in April 2021 rather than September 2020. 314 of these days away from the UK are due to my compulsory year abroad, so I really hope the absence will be disregarded. I don't have family and don't own property in the UK, but I own a vehicle, which I bought specifically to be able to start a career in a UK industry that's quite difficult to get into and can prove I've worked hard to find work and then establish myself in it and therefore have no intention of giving it up and leaving the UK. I'm not sure if this is something that might help?

I'm wondering if I should try and keep the number of days as low as possible or if it's fine for me to travel outside the UK as long as I don't go above the 480 days limit? If I want to keep it at 456 days, it would mean I won't be able to leave the UK between January 2020 - April 2021, which is not ideal, but it's something I will do if necessary.

Any advice would be very much appreciated!

[zimba]

480 will be the max. However you may find that you cannot even get settled status for now given you were not here exercising treaty rights

[kammak]

480 will be the max. However you may find that you cannot even get settled status for now given you were not here exercising treaty rights

Thank you, Zimba. Do you mean my years as a student at a UK university won't count towards the 5 years I need to get settled status? Isn't studying one of the treaty rights together with work or self sufficiency?

That's a definition of exercising treaty rights I found on FreeMovement: 'Work, self employment, study or self sufficiency in another Member State.'

Also, the Home office lists 'letter or certificate from your school, college, university or other accredited educational or training organisation showing the dates you enrolled, attended and completed your course' as an acceptable evidence of residence.

Thank you.

[CR001]

480 will be the max. However you may find that you cannot even get settled status for now given you were not here exercising treaty rights

Thank you, Zimba. Do you mean my years as a student at a UK university won't count towards the 5 years I need to get settled status? Isn't studying one of the treaty rights together with work or self sufficiency?

That's a definition of exercising treaty rights I found on FreeMovement: 'Work, self employment, study or self sufficiency in another Member State.'

Also, the Home office lists 'letter or certificate from your school, college, university or other accredited educational or training organisation showing the dates you enrolled, attended and completed your course' as an acceptable evidence of residence.

Thank you.

Yes, but only if you held CSI or a non UK issued EHIC.

[kammak]

480 will be the max. However you may find that you cannot even get settled status for now given you were not here exercising treaty rights

Thank you, Zimba. Do you mean my years as a student at a UK university won't count towards the 5 years I need to get settled status? Isn't studying one of the treaty rights together with work or self sufficiency?

That's a definition of exercising treaty rights I found on FreeMovement: 'Work, self employment, study or self sufficiency in another Member State.'

Also, the Home office lists 'letter or certificate from your school, college, university or other accredited educational or training organisation showing the dates you enrolled, attended and completed your course' as an acceptable evidence of residence.

Thank you.

Yes, but only if you held CSI or a non UK issued EHIC.

I thought this only applied to permanent residence status and not settled status applications?

'In order to be eligible for ILR, an applicant only needs to have been resident in the UK for a continuous five-year period. They are not required to have worked in the UK, held comprehensive sickness insurance or otherwise have been a ‘qualified person’.' (from Carter Thomas website, this is about settled status applications)

[zimba]

I am not expert in EEA regulation. Studying outside the UK does not sound like exercising treaty rights to me but I may be wrong.
Settled status is essentially a replacement for permanent residence status

[kammak]

I am not expert in EEA regulation. Studying outside the UK does not sound like exercising treaty rights to me but I may be wrong.
Settled status is essentially a replacement for permanent residence status

I studied at a UK university for 4 years and my degree included a compulsory year abroad (Erasmus). According to the Home Office:

'You’ll usually get settled status if you’ve:

started living in the UK by 31 December 2020 (or by the date the UK leaves the EU without a deal)
lived in the UK for a continuous 5-year period (known as ‘continuous residence’)'

Five years’ continuous residence means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12 month period. The exceptions are:

one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)'

so hopefully study abroad as part of a degree based at a UK university will count as an exception.