Commentary

Update: the Home Office has updated its position and you can find updated information here.

On 11 January 2018, the Home Office made what it describes as a minor change, but what we think is a pretty significant change, to the way it calculates absences for ILR applications for many applicants applying from work categories of the Immigration Rules.

Instead of continuing to assess absences for ILR applications against a fixed consecutive 12-month period, as it previously has, its new position is that the maximum 180-day limit will apply to any rolling 12-month period during the qualifying period for ILR (this is usually five years but it may be less if the applicant is in a Tier 1 route and is applying under one of the accelerated ILR provisions).

These new measures catch applicants in a number of categories including the most popular work-related routes of Tier 1 (Investor), Tier 1 (Entrepreneur) and Tier 2 (General).

Exceptions
The Home Office’s position is that its new approach on absences in ILR applications will be applied on a retrospective basis, unless one of two exceptions apply. The exceptions are:

• if an applicant provides a letter setting out reasons why they believe changes to how the 180 days are counted will cause them exceptionally harsh consequences; or
• there are serious or compelling reasons for absences of more than 180 days, such as the serious illness of the applicant or a close relative, a conflict or a natural disaster.

Therefore, in cases where the requirement is not met, a robustly prepared case explaining the reasons for any excess absences will be considered by the Home Office.

The Home Office has confirmed that time spent overseas due to pregnancy, or maternity, paternity or adoption-related leave is to be treated in the same way as any other absence, that is, within the 180 days in any 12 months.

The calculation
Typically, those who intend to apply for ILR will nominate a date in the future as to when they intend to apply. They will then keep a close eye on their absences from the UK, counting backwards in 12-month periods to cover five years and making sure that absences in any 12-month period do not exceed 180 days.

Applicants must now review each 12-month period from each entry into the UK they have made, and will make until they file their application, during the qualifying period for ILR. If they have exceeded 180 days absence in any 12-month period, a strong case will need to be prepared to explain the excess absences.

Fairness
In order to be compliant with general UK legislation, the Home Office must always apply its rules in a manner that is  fair and rationale.

An applicant who had absences that did not exceed the old permitted absence rule, but that do now exceed the new rules that were implemented on 11 January 2018 will, in our opinion, have a strong legal case to argue that the new rules should not be applied to them.

Other rules relating to absences
Of course, it is important that those who are intending to apply for ILR ensure that they are aware of all the rules relating to permitted absences, not just the 180-day limit. Detailed information is contained in the Home Office’s guidance here.

An update on the position for PBS dependants.
We previously highlighted that the Home Office had imposed new absence requirements on PBS dependants seeking to make ILR applications.

The Immigration Law Practitioners’ Association (ILPA) has been in communication with the Home Office about the unfairness of these new rules. The Home Office has, to date, maintained a tough approach and has stated in an email dated 20 December 2017 that:

‘… our general position is that those applying for ILR should have built up substantial ties to the UK, including having lived the majority of their time here. Allowing absences of up to 180 days a year is a very generous provision which allows applicants to continue their business affairs overseas while building ties to the UK. We see no reason not to apply the same requirement to dependant partners as well as to main applicants.

In applying for leave, they are declaring an intention to live with their partner in the UK. The child dependant rules also require both parents to be in the UK, or be granted at the same time. We would question what the purpose would be of granting such leave to dependants if the real intention was for the partner/other parent to live apart from their family for the majority of the time. Such activities clearly go against the intention of the rules and may be considered to be a change of circumstances under paragraph 321(ii) or a false declaration under paragraph 321A(2) of the rules. Some PBS dependant partners have been refused re-entry for this very reason. Quantifying in the rules that they may spend up to 180 days a year overseas removes this uncertainty.

With regard to the notice of this change, applicants have the remainder of their existing leave before any absences from the UK will be counted. As the absence provision is up to 180 days a year, they would also be able to have substantial absences from the UK in the early part of their future extension leave, before any such absences reached a level that would affect a future application for settlement. There is also no limit on the number of times an applicant may extend their leave as a PBS dependant. If any partners are unable to qualify for settlement, it is open to them to apply for further extensions and settle in future. The same applies to child dependants.’

We will update our website if there are any further developments. We would strongly recommend that those planning to apply for ILR make changes as necessary to further travel plans to ensure that they meet the new requirements where possible.

Non-PBS applications such as partner applications
Please note that this information on absences for ILR applications only relates to applications under the Points Based System, as outlined above.

The law relating to absences for ILR applications for spouses, for example, is different and we can provide specific advice on non-PBS ILR applications.

How we can help
We are experienced in assisting clients to prepare strong cases to put to the Home Office, including when the specific requirements may not have been met. We have ensured numerous successful outcomes despite there being excessive absences.

If you require legal advice on absences for ILR applications or you need any other advice on this area of law, please contact us.