Looking to settle in the UK? Changes to the way absences are calculated may affect your application
Points-Based System (‘PBS’) migrants wishing to apply for Indefinite Leave to Remain (i.e. settlement) must demonstrate continuous residence in the UK, meaning that they must show that they have not had more than a specified number of absences over a qualifying period (usually five years).
From 11 January 2018, the absence requirements have tightened in accordance with the changes set out in the Home Office’s December Statement of Changes in Immigration Rules.
Previous absence requirements
Previously, an applicant must not have been absent from the UK for a period of 180 days or more in any of the five consecutive 12 month periods preceding the date of their application. This meant that absences could neatly be divided into five blocks of 365 days from the date of application. This benefited applicants who often travel outside the UK for business or leisure, as they could plan when to make their Indefinite Leave to Remain (‘ILR’) application to ensure their absences fell in a way that did not breach the 180 day requirement.
The new rules
The new rules allow the Home Office to look at any 12 month period across the 5 year period immediately preceding the ILR application. This means that if an applicant has been absent for more than 180 days in any 12 month period then their application will be rejected unless there are compelling circumstances for the absence. This could cause particular difficulties for those who wish to settle in the UK but frequently travel outside the UK (on business or otherwise). The Home Office intends to apply this new rule retrospectively.
PBS dependants looking to settle in the UK
The new rules confirm that PBS dependants will also need to meet the same absence requirements when applying for ILR. Previously, PBS dependants had not been required to meet any absence requirements. However, unlike with main applicants, this change is not intended to have retrospective effect for dependants and only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.
Impact of the changes
Despite the significance of these changes, it is still unclear how exactly absences will be calculated over the 5 year period. It is likely to be administratively burdensome for applicants who travel frequently, as well as for the Home Office. Applicants and case workers alike will presumably have to count back 12 months from the end dates of every absence from the UK to check they have not exceeded the 180 day limit.
In the meantime, anyone looking to apply for ILR should consider their absences from the UK carefully and ensure they maintain a detailed record.
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