Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).
However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.
The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.
Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.
On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.
We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at firstname.lastname@example.org.