** Please note that some of the information in this blog post is now out of date due to further changes in the Immigration Rules and Home Office Guidance which came into force on 6 July 2018.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 firstname.lastname@example.org.