Calculating absences for ILR applications

Following on from our article dated 12 January relating to Indefinite Leave to Remain (ILR) assessment changes, the Home Office has published its new guidance confirming the way absences will be calculated for ILR purposes in the UK.

Up until 11 January 2018, migrants applying for ILR after five years continuous residence in the UK needed to provide evidence they had less than 180 days’ absence in any consecutive 12 month period preceding the date of their application.

Under the new rules, a new formula to calculate absences has taken effect. Migrants must now not be absent from the UK for more than 180 days during any rolling 12 month spell within the qualifying period.

It had previously been the case with certain Home Office rule changes that a migrant could still rely on the rules in place at the time of their initial application via special transitional provisions.  However the new ILR rules do not provide for any transitional arrangement and the rules are applied retrospectively.

Although the rules and guidance now state that applications must be refused where the continuous period requirement is not met, we have very recently dealt with an application after the rule change where a successful outcome on an exceptional basis was secured on behalf of our client.

In this case, the applicant was a trainee lawyer employed under a Tier 2 visa sponsored by a global company. Trainee lawyers are seconded overseas to complete part of their training during the qualifying period.

As a consequence of this secondment, the applicant spent over 180 days outside the UK during a 12 month period and was therefore in breach of the requirement under the new rules. Had this application been filed prior to the new rules coming into effect, the absences could have been evidenced as straddling two consecutive years and therefore below the 180 day limit for any consecutive 12 month period.

Application granted! 

In this case, representations were made to the Home Office indicating that, if the applicant was able to rely on the provisions prior to 11 January 2018, then this requirement would have been met. In addition, it was demonstrated to the Home Office that, were the application to be refused, it would be very detrimental to the applicant who would face exceptionally harsh consequences as he would no longer be able to obtain further extensions of leave, would be unable to apply for ILR at a future date, and would consequently have to leave the UK.

Although the guidance specifically states that absences due to employment are not considered exceptional and will count towards the 180 day maximum each year, on this occasion, the Home Office exercised discretion and granted the application outside of the rules. It therefore appears that the Home Office is willing to be flexible with this requirement where a refusal is likely to have adverse consequences on the applicant’s status and where they would have met this requirement under the old rules.

PBS Dependants – a more relaxed approached 

In addition, the new rules also require dependants of Points Based System applicants wishing to apply for ILR to be bound by the same rule. Previously, dependants were not subject to a continuous residence requirement and it was not necessary for them to declare their absences from the UK as part of their ILR application.

The rules, however, do appear to take a more relaxed approached in relation to dependants as the guidance states that they are not required to include any absences from the UK prior to 11 January 2018 towards their allowable absences.

Forward Planning

For future ILR applications, travel outside of the UK will now need to be carefully scheduled and closely monitored as the new stringent requirements do not leave room for strategic planning around the timing of submission of applications to ensure that applicants are not caught out by the new rules.

Due to the complex calculations and the new rules, applicants should therefore seek guidance prior to submitting applications. If you have had excessive absence during your qualifying period and would like to know if this is likely to impact your status, please call our specialist immigration team for a consultation.