We previously covered the Government’s controversial January 2018 changes to the 180 day ILR absence rule in relation to many of the work-related immigration categories.
In welcome news, the Government has confirmed in a new Statement of Changes in Immigration Rules, that the new 180 day ILR absence rule will not apply in relation to leave held before January 2018.
The specific amendment states that:
‘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 in the UK under Tier 1 Investor, Tier 1 Entrepreneur or Tier 2 General, for example, is due to apply for ILR on 1 January 2020 and their last extension of stay for a further 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 from 1 January 2020. If they have been absent for more than 180 days in any 12 month period during that time, this will no longer have an adverse effect on their application.
Unfortunately the wording of the amendment is less clear if that same person’s last extension of stay was on 13 January 2018. It appears that the intention behind the wording is to require that person to ensure that they are not absent for more than 180 days in any 12 month period from 13 January 2018 until 1 January 2020. However, the actual words are open to interpretation.
We will provide an update as soon as we have further clarity and we recommend that, for now, a stricter interpretation of the wording is assumed in order to protect the opportunity to apply for ILR.
Please note that the above rules do not relate to ILR applications for spouses and partners and information on the absence requirements in spouse and partner ILR applications can be found here.
For further information, please contact our immigration team.