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Counting 180 days

On 11 January, the Home Office brought in a change in the formula to calculate the continuous residence for indefinite leave to remain (ILR). The Home Office’s latest statement of changes HC309 were issued in December 2017 which contain important changes to the provisions on how the Home Office assesses continuous residence for ILR applications. Almost all visa categories require an applicant to show they have been continuously resident in the UK over a certain period (usually 5 years) before they can apply for ILR. These include work-based categories (such as Tier 2 General, work permit and Tier 1) and categories for family members (such as spouse and children). The changes in HC309 affect all these categories. The current test for assessing continuous residence is found in various paragraphs throughout the immigration rules, depending on the category of the application. The test is worded similarly and has the same affect in practice. Using the example of 245AAA(a)(i), which applies to Tier 2 applicants, the rule states that an applicant must not be absent from the UK for a period of 180 days or more in any of the five consecutive 12 month periods just before the date of the ILR application. In practice, the rules have been applied is a way that if an ILR application is made on, say 31 March 2018, the applicant has to count back 365 days to 1 April 2017 to check if they have not exceeded the 180-day limit in that period. The same calculation is needed in each of the preceding 365 day periods until the start of their five years’ residence (the qualifying period) in the UK. The rules have been re-worded on 11 January so that an application for ILR could be refused where the applicant has been absent for more than 180 days during any 12-month period over the five years’ residence. The relevant substitutions can be found in sections 5.4, 6A.3 and 8.33 of the statement of changes. All are worded in similar way and have the same practical effect in assessing the applications under relevant categories. Section 6A.3, as an example, reads,

 

In paragraph 245AAA(a), for:

“(a) “continuous period of 5 years lawfully in the UK” means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);”,

substitute:

“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:

the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;”.

The changes could be very significant in practical terms, especially for the applicants in work-related categories. The new rules would mean that an application for ILR could be refused if the applicant had been absent from the UK for 180 days or more in any 12 months over the five years. Going back to the example above, if the applicant has been absent from 1 November 2014 to 30 April 2015 (181 days), then on the date of application (i-e 31 March 2018), the applicant could fall foul of the new rules because they have exceeded the 180-day limit in one rolling 12-month period. The qualifying period for this application starts from 31/03/2013 and the applicant in this situation may consider delay making the application until November 2019 when the qualifying period will start from November 2014 and the absences for more than 180 days starting in November 2014 become irrelevant. However, that would open a new can of worms in some cases (see below). The stated aim of the Home Office in making these changes is to clarify and remove inconsistencies from the rules. However, in reality the maths will hurt the brain of most applicants, especially the ones who travel a lot for work or other reasons. Any application for ILR made on or after 11 January will be decided under the new rules.  The retrospective application of the new method of calculating continuous residence is likely to have colossal implications for anyone who has been cautiously planning their trips outside the UK over the last few years (the qualifying period) to meet the current rules on absences. One big group that is going to be mostly affected by the new rules is the ‘brightest and best’ – a phrase used by the government to flatter the highly skilled migrants. Those CEOs and executive office holders, and Tier 2 migrants who need to travel for business or to enhance career may find at the end of the road that their ILR applications have failed because of the trips they made keeping in mind the old formula. The Tier 2 migrants who are caught by the new provisions will further find that some other Tier 2 provisions are on their tail to limit their total stay in the UK under this category to six years. To go back to the example above, a Tier 2 migrant in this situation will be unable to delay making an application for ILR so that his absences do not affect the qualifying period, if his total stay in the UK exceeds six years. They will be left with no option but to return home. To add to their misery, they will be unable to return to the UK under Tier 2 category until the 12 month cooling period expires, unless they are paid £120,000 or higher in their job. It is hard to see how the government’s claim to keep Britain open for the brightest and the best stands true in the face of these big changes to the Immigration Rules which have been implemented with a month’s notice but no transitional provisions to mitigate any resultant unjust effects. It is yet to be seen if the updated Home Office’s caseworker’s guidance allows them to use discretion in dealing with the cases where the applicant qualifies under the old rules.   Photo Credit: Nadine Doerle on Pikwizard

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Zahid Akbar

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