On 11 January 2018, the immigration rules were amended and new provisions were introduced which affect how the Home Office assesses continuous residence for Indefinite Leave to Remain (ILR) applications. Whilst the changes affect all Points Based System migrants, we will be focusing on Tier 2 General workers.
What is Indefinite Leave to Remain?
Tier 2 General workers who were issued their first visa in this category on or after 6 April 2011 can only stay in the UK in this category for a maximum 6 years. After 5 years of living and working in the UK, providing they meet the eligibility criteria, they can apply for ILR which is a status which will allow them to live in the UK without any time limit and they are free to take up employment or study without any restrictions.
What is the ‘Continuous Residence’ requirement?
The continuous period requirement is the minimum amount of time which a migrant must spend in employment or being active in the UK economy before being eligible to qualify for ILR. For such applications, case workers examine how many days the applicant was absent from the UK and for what reason.
How are absences calculated?
Prior to 11 January 2018, Tier 2 General visa holders applying for ILR needed to provide evidence that they had less than 180 days absence in any consecutive 12 month period preceding the date of their application.
Under the new rules, ILR applicants must now show that they have not been absent from the UK for more than 180 days during any rolling 12 month period within the qualifying period.
The new rules apply retrospectively and if absence is over 180 days in any 12 month period, the continuous residence will be broken.
Is there any discretion?
UKVI guidance published on 11 January 2018 provides that discretion can be exercised in limited circumstances:
- If the excessive absence was due to “serious or compelling reasons” (this includes applicant’s serious illness, relative’s serious illness, a conflict or natural disaster); or
- The new calculation method would cause the applicant “exceptionally harsh consequences”
Why is the rule change important for Tier 2 sponsors?
Applicants most at risk of falling foul of the new rule are senior executives who travel frequently on business and employees of multi national organisations who are taking on international assignments or projects.
Such applicants should be keeping a detailed record of their absences and plan visits accordingly. Employers will be required to provide a letter detailing these absences at the time of an ILR application so they should keep a separate record.