Academics at Durham University applying for indefinite leave to remain were recently refused on the basis that they had spent too long outside the UK.
If you are applying for a UK visa you should be aware that your eligibility for indefinite leave to remain could be affected by travel outside the UK.
However, different rules apply in different categories.
This post looks at the “continuous residence” requirement in the long residence, Points-Based System, and Partner categories. Note that you will also have to make sure that you meet all the other requirements for your application.
Long residence
If you have built up 10 years of “continuous lawful residence” in the UK, then you might be eligible to apply for indefinite leave under the long residence rules.
The residence requirements in this category come under the definition of “continuous residence”. Paragraph 276A of the Immigration Rules says that you can be absent from the UK for “6 months or less at any one time” without breaking continuity of residence.
However, your continuous residence will be broken if you are outside the UK for more than 18 months during the 10-year period of residence. Some discretion is available is you have been absent for reasons beyond your control, but the Home Office has a record of forcing applicants to rely on making an appeal in these cases.
It’s worth noting in both cases that the long residence guidance says that a month is defined as 30 days.
Points-Based System
Several categories of the Points-Based System allow for indefinite leave to remain after 5 years of continuous lawful residence, for example Tier 2 (General) for skilled sponsored worker.
Some Tier 1 categories allow for “accelerated” settlement after only 2 or 3 years.
From 11 January 2018 the definition of “continuous” residence in these categories changed so that you must show that you were not absent from the UK for more than 180 days in any 12-month period during your qualifying period. Previously, the calculation was based on discrete 12-month periods, counting back from the date of application.
Additional absences are permitted for applicants who have spent time working overseas in response to an “economic or humanitarian crisis”.
The guidance issued to caseworkers does give some indication that people caught by the rule-change might still be granted indefinite leave. However, the guidance consists only of suggestions for exercising discretion. This is likely to be small comfort given the serious consequences of a refusal.
The new system for main PBS applicants will be applied to all ILR applications from 11 January. However, a similar counting scheme will not be applied retrospectively to PBS dependants.
Partner visas
The main requirement placed on the partner of a British citizen or a settled person is that they must “live together permanently in the UK”. This requirement applies at the time of initial application, as well as at the point of application or indefinite leave to remain.
There is no prescribed number of days that an applicant must have spent in the UK to qualify for ILR in this category.
However, caseworkers are instructed to check that any absences from the UK are for “good reasons… consistent with the intention to live together permanently in the UK”. Examples given include holidays, employment and study. There may be additional scrutiny of your intentions if you have spent most of your time outside the UK.
Preparation
If you are aware of the rules, then you can plan your travel or overseas work and study accordingly.
Points-Based System applicants should take particular care in taking overseas postings: in some cases it might be prudent for your employer to contact the Home Office to ask for guidance.
If you are kept out of the UK unavoidably because of an unexpected event like a medical emergency, you should keep as much evidence as possible of what has happened so that you can put your best case forward in any future application.
It’s not always possible (or desirable!) to keep the UK immigration authorities in mind during your travels, but planning and keeping records will help.
Kitty Falls
Solicitor
If you have any questions about your absences from the UK, or would like advice about any other aspect of your application for settlement, please do not hesitate to contact me,
Email: kf@kfimmigration.com
Telephone: 07752 722 292