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.
