UNITED KINGDOM: Calculating Absences for Indefinite Leave to Remain Applications

The way in which UK Visas and Immigration (UKVI) calculate absences from the UK in relation to an application for Indefinite Leave to Remain (ILR) has changed.

Applications for ILR based on five years continual residence in the UK previously needed to  evidence fewer than 180 days’ absences in any of the five consecutive 12 month periods prior to the date of the application.

However, a new rule outlined in the December 2017 Statement of Changes to the Immigration Rules took effect on 11th January 2018, which sees the 180 days’ absence from the UK now calculated on a rolling 12-month basis.

That means that instead of calculating absences within each individual 12 month period, UKVI caseworkers can now refuse applications where the 180-day absence limit has been exceeded in any rolling 12 month period.

UKVI guidance has been updated to reflect the changes.

Exercising Discretion

The guidance states UKVI may apply some discretion where applicants are deemed to have exceeded the 180-day absence limit, in the following cases:

  • if the absences were due to ‘serious and compelling’ reasons, or
  • if it can be demonstrated that the changes as to how the 180 days are counted will cause the applicantexceptionally harsh consequences’

UKVI suggest applicants would need to provide a detailed letter setting out the reasons why they believe a negative decision would indeed cause ‘exceptionally harsh consequences’.

Partners

As reported by Newland Chase in December, applications for ILR made by partners of points-based system migrants will be required to show that they have not been absent from the UK for more than 180 days per year, just as main applicants are required to do.

This change will apply to absences from the UK during leave to remain granted under the rules in place from 11th January 2018.

Our Advice

UKVI treat all applications on their own merits and processes each one on a case by case basis. A detailed review of an applicant’s personal circumstances will need to be fully considered before applying for ILR. Clients should contact their Newland Chase immigration specialist if they are in any doubt how their absences might be calculated in relation to an application for ILR.

For advice and information on immigration to the UK in general, please email us at enquiries@newlandchase.com.

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