UK Immigration Update – Changes to Immigration Rules concerning Indefinite Leave to Remain

January 19, 2018 All, UK
2,571

 

UK Immigration Update – Changes to Immigration Rules concerning Indefinite Leave to Remain

Following changes to the UK immigration rules on 11 January 2018, the Home Office have published updated guidance on calculating continuous residence for Indefinite Leave to Remain (ILR) applications due…

Following changes to the UK immigration rules on 11 January 2018, the Home Office have published updated guidance on calculating continuous residence for Indefinite Leave to Remain (ILR) applications due to significant changes made to provisions affecting how “continuous residence” will be assessed going forward.

While this article is targeted at Ferguson Snell’s corporate clients, we encourage such clients to circulate this internally with those individuals who may be affected by the changes discussed.

Point-Based System (PBS) migrants (including Tiers 2 and 1 migrants), representatives of an overseas business, UK ancestry visa holders and domestic workers in private households.

The Home Office have changed the absences requirement for ILR applications in the above categories as of 11th January 2018. The crucial change in the requirement is that the applicant previously could be absent from the UK for a period of 180 days or less in any one of the five consecutive 12 month periods preceding the date of the application i.e. if they had been on a six month overseas secondment during the five-year qualifying period then the ILR application could usually be timed to be submitted so that the lengthy absence was broken into two different 12-month periods and they would be eligible to apply.

The new rule is such that the applicant must not be absent from the UK for more than 180 days during any 12-month period within the continuous five-year qualifying period. As such, applicants will need to be careful when planning and calculating their absences as they will now be calculated on a rolling basis going backwards for a 12-month period from any one day in the relevant five-year period.

This change will potentially affect employees who are required to travel for work frequently as well as employees taking overseas placements. Potentially, any six month overseas secondments, particularly combined with any personal travel, would exceed this requirement leaving the individual ineligible to apply for ILR.

Only absences deemed by the Home Office to be for ‘serious or compelling reasons’ are not included in the 180 day limit – examples include illness, conflict or naturalist disaster.  Absences arising from employment or economic activity reasons, or pregnancy, maternity, paternity and adoption-related leave, are all explicitly ruled out as being serious or compelling and therefore form part of the 180 day limit.

On a more encouraging note, the Home Office’s policy guidance expands upon a discretion which may be exercised by appearing to make provision for absences which occurred before 11th January 2018 depending on the individual circumstances. The most relevant factors may include:

  • “The level and pattern of the applicant’s absences from the UK during each of those periods of leave
  • Whether the consequences of a refusal would be exceptionally harsh, for example whether it would not be possible for them to qualify for settlement at a later date because they would be unable to apply for further extensions”

This is particularly relevant for Tier 2 (General) migrants as they may be caught by a six-year cap applicable to this visa category. This means that if Tier 2 migrants do not qualify for ILR due to excessive absences and they have already spent six continuous years in the UK on this visa type, they may have to return to their home countries (unless able to move into a different visa category) and will usually be subject to a “cooling-off” period preventing them from returning to the UK under any Tier 2 category (the only exception applies to “high-earners”). However, we believe this discretion may afford affected individuals to qualify for ILR where work related absences (business trips, annual leave, overseas placements and holidays taken on the conclusion of employment where the individual has made a successful application to work for a new employer) took place before 11 January 2018 and were required to fulfil individual’s UK role, and they are unable to extend their leave in such a way that would allow them to apply at a later date.

As it appears unlikely that discretion will be exercised towards absences falling on or after 11 January 2018, we strongly recommend that affected individuals immediately review their historic and proposed absences with a view to ensuring that future absences combined with all previous absences do not exceed 180 days in any 12-month period going forward. Where the limit has already been passed due to historic absences or there is a concern that the limit may be passed in the future, specialist advice should be sought as to the implications of this.

 

PBS dependants

To align “continuous residence” requirements for PBS dependants applying for ILR with other categories, the Home Office introduced the new requirement. According to this requirement, PBS dependants will now be required to have had absences of no more than 180 days per year in order to qualify for settlement. The good news is that that this requirement will not have a retrospective effect (unlike changes discussed above) and will only apply to those who apply for a new visa or extension of their existing visa on or after 11 January 2018. This means that if PBS dependants obtained their initial visa and applied for an extension before 11 January 2018, this new rule will not apply to them. All other PBS dependants applying for leave from 11 January 2018 will now need to comply with the new rule and calculate their absences to ensure that they qualify for ILR. This change will mostly affect partners of Tier 1 and Tier 2 migrants.

We encourage all PBS Dependants (or the family member upon which they are dependent) who believe they may be affected by this change to seek specialist advice.

 

FSA-UK-immigration-udpate-statement-of-changes – ILR

Should you have any queries about the above or require assistance, please contact your dedicated Ferguson Snell consultant or call directly on 0203 668 2700.