Recent Changes to Continuous Residence rule for ILR Applicants
Share this:
The Government has issued a new statement of changes ( HC309 ) to the Immigration Rules in December 2017. Part of the changes include new provisions that will affect how the Home Office assesses continuous residence for indefinite leave to remain (ILR) applications.
Certain visa categories require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for ILR. These include a number of the work-based categories such as Tier 2 General.
The current test for assessing continuous residence is in paragraph 245AAA(a)(i) of Part 6A of the Immigration Rules. This states that an applicant for ILR must not have been absent from the UK for a period of 180 days or more in any of the five 12-month periods preceding the date of the application.
In
practice, this means that if someone is applying for ILR on 10 January 2018,
they have to count back 365 days to 11 January 2017 to check that they have not
exceeded the 180-day limit in that period, and so on until the start of their
five years’ residence in the UK.
EXAMPLE:
For instance, if the applicant is applying for ILR on the 10th of January 2018, the timeline is the following:
10 January 2018 – 11 January 2017 – 1 year (absent for 1 month or 30 days)
10 January 2017 – 11 January 2016 – 1 year (absent for 1 month, or 30 days)
10 January 2016 – 11 January 2015 – 1 year (absent for 2 months, or 60 days)
10 January 2015 – 11 January 2014 – 1 year (absent for 1 month, or 30 days)
10 January 2014 – 11 January 2013 – 1 year (absent for 2 months, or 60 days)
In this scenario, the applicant has not exceeded the 180 days maximum requirement, since for EVERY YEAR, they have only spent a maximum of 1-2 months, or 30-60 days, outside of the UK.
New Changes:
From 11 January 2018, the wording of the rule is going to change so that an applicant for ILR must not be absent for more than 180 days during any 12-month period over the five years. The substitution is made in section 6A.3 of the statement of changes:
In paragraph 245AAA(a), for:
“(a) “continuous period of 5 years lawfully in the UK” means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:
(i) 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, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);”,
substitute:
“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
(i) 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, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);”,
substitute:
“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
(i) 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, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;”.
The difference is subtle but significant. It will mean that an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period. Absences are calculated on a rolling basis, instead of in fixed blocks.
To go back to the example above, if the applicant had spent seven months outside of the UK between October 2014 and April 2015, under the current rules their continual residence would not be broken: by applying on 10 January 2018 they could divide the absences across two different 12-month blocks. Under the new rules, the application is likely to be refused as the applicant was absent for over 180 days over a 12-month period.
Example:
If the applicant was absent from the UK from October 2014 and April 2015, under the old rules, if the applicant applied on the 10th of January 2018, the applicant can break this down as the following:
10 January 2018 – 11 January 2017 – no absences
10 January 2017 – 11 January 2016 – no absences
10 January 2016 – 11 January 2015 – 4 months’ absence, from January, February, March and April 2015 – so 4 months or 120 days in total
10 January 2015- 11 January 2014 – 3 months absence, from October, November and
December 2014- so 3 months or 90 days absence;
10 January 2014 – 11 January 2013
Under the current rules, the total number of absences throughout the WHOLE 5-year period is taken into account. So, in the above scenario, if the applicant was away from October 2014 until April 2015, and they are submitting their application on or after the 11th January 2017, this means that they cannot meet the continuous residence test, because in total, they were outside the UK for 7 months in total, or approximately 213 days, which is more than the 180 days maximum requirement.Share this:
While every effort has been made to ensure that the information and law contained in this article is accurate and current as of the date of publication, we accept no responsibility for its accuracy or for any loss or damages arising from accessing, or the reliance, of this guidance.
Please also note that the information does not represent a complete statement of the Law and does not constitute legal advice.
If you would like specific professional advice about your UK immigration matter, please consider booking a consultation or one of my other legal services.
Making a UK Visa or Settlement application can be a stressful experience, and whilst there is a lot of ‘free’ information online, finding clear expert guidance that is up to date, and in line with your specific requirements can be a daunting task.
If you have any concerns about your case, it is recommended to reach out for advice from a trusted legal professional.
