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On 11 January 2018, the Home Office made significant changes to the way it calculates absences for ILR applications for many applicants.

Instead of continuing to assess absences for ILR applications against a fixed consecutive 12-month period, the maximum 180-day limit will now apply to any rolling 12-month period during the qualifying period for ILR. This is usually five years, but may be less for some routes with accelerated provisions.

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

These measures does not apply to spouse visas and further information on those applications is here.

Absences during periods of leave before the change
The Home Office has confirmed that the new rules will not be applied retrospectively:

‘…for any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, the applicant must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.’

Therefore, if a person with leave to remain under a route captured by the new rule is due to apply for ILR on, for example, 9 January 2020, and their last extension of stay for two years was on 10 January 2018 (and therefore covers them up to the point they can apply for ILR), they will only need to calculate absences for each consecutive 12 month period counting backwards 5 years (less 28 days) from the date they apply.

If they have been absent for more than 180 days in any rolling 12 month period during that time, this will not have an adverse effect on their application.

However, taking the same scenario, if the last extension of stay was granted on 12 January 2018, the new rules will apply to absences from then.

Discretion on absences in ILR applications
The Home Office’s will discount excessive absences for the following ‘serious and compelling’ reasons:

• serious illness of the applicant or a close relative
• a conflict
• a natural disaster.

It will also discount excessive absences where the absence was due to the applicant assisting with a national or international economic or humanitarian crisis, such as the Ebola crisis which began in West Africa in 2014.

Evidence must be provided by applicants who have had excessive absences.

The Home Office will update its guidance here to include any other permitted reasons for excessive absences in the future. It is important that applicants review that document carefully when preparing an application.

Maternity etc.
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.

Other rules relating to absences
There are other rules relating to absences in ILR applications. Detailed information is contained in the guidance.

It is important that applicants ensure they have complied with all the requirements when preparing an ILR application. 

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.

There are many routes to ILR and you can find more information about these here.