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Further changes to calculating “continuous residence” in the UK for indefinite leave to remain

11th October 2018 By Sonia Cala-Lesina

In January 2018, the Home Office brought in significant changes to the way in which “continuous residence” is calculated for the purpose of applications for indefinite leave to remain (ILR) in certain work categories including Tier 1, Tier 2, UK Ancestry and Representatives of an Overseas Business. You can find details in my earlier blog post, here.

This current blog post is a summary of the further changes which came into force on 6 July 2018.  The advice in this blog is correct as of the date of publication, but – as demonstrated by this very issue – immigration law and procedures change very rapidly and we would urge readers always to check the current position before making an application to the Home Office.

The position pre-January 2018

In the past, continuous residence for applicants under the particular work categories listed above was considered unbroken where:

“the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days…”

The position between January 2018 and July 2018

The changes of 11 January 2018, however, amended this definition so that continuous residence was instead considered unbroken where:

“the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days…”  

These changes were initially brought into force on 11 January 2018 with immediate effect, with no ‘grandfather clause’ or transitional provisions for people who had been relying on the previous rule, believing that it would continue to apply to them.

In addition to being impractical and unnecessarily harsh for the migrants affected, that change was also, in our opinion, unlawful with respect to those people who already had a relevant status and were relying on the old rule and now suddenly found that it did not apply, and that the way that they had been calculating their absences based upon the old rule might now prevent them from obtaining indefinite leave to remain.

The position since July 2018

On 6 July 2018, the Home Office amended the Immigration Rules relating to continuous residence again, this time for the better.

Perhaps anticipating forthcoming legal challenges to the retroactive nature of the changes, the Home Office introduced transitional arrangements and revised the Immigration Rules to state that, with respect to periods of entry clearance or leave to remain granted prior to 11 January 2018, the original rule of up to 180 days in the five consecutive 12 month periods would continue to apply, with the new rule only being applied to periods of leave granted after 11 January 2018.

The Home Office’s guidance of 6 July 2018 – which remains in force now (at the date of this blog) and which is available here – provides the following example for how absences are to be calculated for ILR applications:

“For settlement applications made from 11 January 2018, you must consider absences from the UK on a rolling basis, rather than in separate consecutive 12 month periods. If the applicants qualifying period includes leave granted before this date, any absences during that leave will be considered under the previous rules – in separate 12-month periods ending on the date of application.

For example: The application date is 30 June 2020. The applicant’s continuous period includes the following grants of leave:

  • one grant of leave from 1 July 2015 to 28 July 2018 – any absences during this grant of leave will be considered in separate 12-month periods, ending on 30 June each year
  • one grant of leave from 29 July 2018 to 30 June 2020 – any absences during this grant of leave will be considered on a rolling basis: you must not include any absences from the previous grant of leave when you assess this.”

I would urge anyone who had been expecting to qualify for ILR but who believed that they no longer qualified as a result of the changes to the Rules in January 2018, to look again at their absences, as they may qualify sooner than they thought.

For the sake of completeness, I note that the Home Office’s new guidance of 6 July 2018 continues to confirm that, in exceptional cases, ILR may be granted “outside the Rules” on a discretionary basis where the excess absences were due to “serious or compelling reasons”, but that work-related absences are not considered exceptional.

The position for dependent family members of Points Based System (PBS) migrants, including dependants of Tier 1, Tier 2, Tier 4 (General) and Tier 5 (Temporary Worker) migrants, also remains the same as in my earlier blog post – namely, that absences from the UK during periods of leave granted before 11 January 2018 will not be taken into account, but for periods of leave granted after 11 January 2018, PBS dependants will be subject to the new Rules and will need to ensure that their absences do not exceed 180 days in any 12 month period.

One final point to note is that the guidance no longer provides that ILR can be granted outside the Rules on the basis that the changes have caused the applicant “exceptionally harsh consequences”; this exception has been removed since July, presumably as a result of the fact that there are now transitional provisions in force so applicants have been given notice of the new Rules.

Filed Under: Uncategorised

Changes to calculating “continuous residence” in the UK for indefinite leave to remain

29th January 2018 By Sonia Cala-Lesina

** Please note that some of the information in this blog post is now out of date due to further changes in the Immigration Rules and Home Office Guidance which came into force on 6 July 2018.  You can read about the changes of 6 July 2018 here.  We would urge readers always to check the current legal position before making an application to the Home Office. **

 

In order to be eligible for indefinite leave to remain (ILR) in certain categories, applicants are required to demonstrate that they have spent a “continuous” period of 5 years’ residence in the UK. So what is continuous residence, and when is it broken?

A recent change in the Immigration Rules has redefined continuous residence for ILR in work categories, including Tier 1, Tier 2, UK Ancestry, and Representatives of an Overseas Business.

Prior to 11 January 2018, continuous residence was considered unbroken where:

“the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days…”

Since 11 January 2018, however, continuous residence is considered unbroken where:

“the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days…”

Although the change is a difference of just a few words, its effects can be far-reaching.

Under the old rules, for example, if an application was being submitted on 10 January 2018, the Home Office would consider whether the absences amounted to over 180 days in each of the five consecutive 12-month periods before that date, i.e. between 11 January 2017 and 10 January 2018, 11 January 2016 and 10 January 2017, etc.

This meant that where a person had a long absence from the UK, in our example, say, between 1 September 2016 and 11 March 2017 (a total of 190 days), they would have been able to split this long absence between two separate years, and therefore stay within the 180 day limit in each consecutive 12-month period.

Under the new rules, however, this is no longer possible. Absences of more than 180 days in any 12-month period will now mean that continuous residence is considered to have been broken.

The new rule came into force on 11 January 2018 with immediate effect and with no ‘grandfather clause’ or transitional provisions for people who had been relying on the previous rule, believing that it would continue to apply to them. This means that people who expected shortly to be eligible for ILR may have to apply for an extension of leave instead.  This issue is being raised with Home Office officials by the Immigration Law Practitioners’ Association and, if no amendments are made, then the retroactivity of this provision may end up the subject of legal challenge on the basis that applicants under the old rules had a legitimate expectation that they would be eligible for ILR.  Such legal challenges have been successful in the past, although in the meantime, applicants will need to consider their options carefully.

The Home Office’s new guidance suggests that ILR may be granted “outside the Rules” on a discretionary basis where the excess absences were due to “serious or compelling reasons”, such as serious illness, conflict, or a natural disaster. Unfortunately, it also specifically states that absences “for employment or economic activity reasons” will not be considered exceptional, which may be difficult for those required to travel for business.

It also states that the Home Office may grant ILR outside the Rules where an applicant can provide a letter explaining how this recent change to the law will cause them “exceptionally harsh consequences”, such as if they would not be able to qualify for ILR in future because of being unable to apply for further extensions. This may be helpful for people who have a high number of absences under the Tier 2 (General) route, where there is a 6-year limit on extensions.  In addition, the guidance states that a relevant factor in deciding whether to grant ILR outside the Rules is when the periods of leave relied upon were granted in relation to the changes of 11 January 2018.

A further significant change in relation to absences applies to dependants of Points Based System (PBS) migrants, including dependants of Tier 1, Tier 2, Tier 4 (General) and Tier 5 (Temporary Worker) migrants. Historically, PBS dependants have not been subject to absence limits for the purpose of obtaining ILR.  However, they will now be subject to the 180 day cap on absences from the UK in any 12 month period for leave granted on or after 11 January 2018.  In this case, the Rules do, at least, make clear that the new provisions for PBS dependants will not apply retroactively, so that absences from the UK for leave granted prior to 11 January 2018 will not count towards the 180 day cap. This is confirmed in the latest version of the SET(O) form, which only requires dependants to list absences for leave granted after this date.

However, while these changes apply to dependants of PBS migrants, they do not apply to dependants of migrants in the other work categories under “Part 5” of the Immigration Rules, which relates to, among others, those of UK Ancestry, Representatives of an Overseas Businesses and Overseas Government Employees (which are commonly referred to as “Part 5 migrants”). Dependants of Part 5 migrants do not have any residence requirements in order to be eligible for ILR.

It is worth noting that the Home Office’s guidance for dependants of Part 5 migrants, available here, on page 15, erroneously suggests that partners of Part 5 migrants must comply with residence requirements in order to be eligible for ILR. However, we have had direct correspondence with the policy team at the Home Office responsible for this document who have confirmed there are no residence requirements for dependants of Part 5 migrants and that the changes that now apply to dependants of PBS migrants do not apply to dependants of Part 5 migrants. We are happy to share this correspondence if you contact us at the email address below.

For tailored advice on how these new changes may affect your eligibility for indefinite leave to remain, and your options for moving forward, contact us by phone on 020 7401 6887 or by e-mail on contact@gryklaw.com.

 

Filed Under: News and Updates


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Refugee Legal Support (@RLSAthens) have produced this moving magazine, 'Family Reunion: Torn Apart', putting human faces to the difficulty many refugees face seeking asylum and family reunion in Europe and the UK: https://issuu.com/kayys/docs/family-reunion-torn-apart?fr=sMTQzYTM3NDg1ODA

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rainbowmigrants Rainbow Migration @rainbowmigrants ·
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Our monthly partnership session on Saturday was a great success! We are grateful to pro bono lawyers Barry O'Leary @WesleyGrykLLP and Arona Sarwar @Arona_StJames who gave advice to our #LGBTQI+ service users.

Next session: Saturday August 20
Details➡️https://bit.ly/3om91ow

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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
7 Jul

For Pride month, the US Presidential Scholars Foundation & Alumni Association published an essay by our founder, Wesley Gryk (@GrykUnplugged), '50+ Years A Gay Man: A Personal Life in A Historical Context'.

See our blog: https://www.gryklaw.com/50-years-a-gay-man-a-personal-life-in-a-historical-context-by-wesley-gryk/

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grykunplugged WesleyGrykUnplugged @grykunplugged ·
27 Jun

To mark Pride Month, the U.S. Presidential Scholars Foundation (PSF) published today in The Medallion, their monthly newsletter, excerpts from - and a link to - an essay I’ve written, 50+ Years a Gay Man: A Personal Life in a Historical Context. https://mailchi.mp/presidentialscholars/june2022.

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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
4 Jul

We are so pleased today to have submitted Trent’s application to register as a BOTC and British citizen following recent changes to the law.

Well done to the @BOTCCAMPAIGN for their work in highlighting the historic injustice for children of BOTC parents!

Home Office @ukhomeoffice

We've launched new routes to nationality for those affected by historical anomalies, including for British Overseas Territories citizens.

This will help people like Trent, who is now able to apply for both British overseas territories citizenship & British citizenship.

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