Historically, when considering applications for Indefinite Leave to Remain (ILR) UK Visas and Immigration (UKVI) calculated absences from the UK for each 12-month period, prior to the date of application.

Applications for settlement based on five years continuous stay in the UK previously needed to evidence fewer than 180 days’ absence in any of the five consecutive 12-month periods.

The introduction of a slight tweak to the rules, however, could have a dramatic impact on the success of some ILR cases. A  new rule outlined in the Statement of Changes to the Immigration Rules in December 2017 took effect on 11 January 2018, stating the 180 days’ absence from the UK must now be calculated on a rolling 12-month basis.

This means that instead of calculating absences within each individual 12-month period, taken from the date the ILR application is filed, UKVI caseworkers can now refuse applications where the 180-day absence limit has been exceeded in any rolling 12-month period.

Discretion

UKVI may apply some discretion where applicants are found 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 applicant ‘exceptionally 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

Changes to the calculation of absences have also been introduced for partners of points-based system (PBS) migrants. Previously there were no specific limits placed on absence from the UK for partners of PBS migrants. However following changes to the permitted absences in December 2017, partners will need to demonstrate they too have not been absent for more than 180 days in any rolling 12-month period, when filing for ILR.

Permitted absences for partners are restricted during any leave to enter or remain granted from 11 January 2018. Absences during any leave granted before this date will continue to be disregarded.

KW Advice

UKVI consider all applications on their own merits. It is therefore critical a detailed review of an applicant’s personal circumstances is completed to allow for any additional paperwork or alternative routes to be considered, before applying for ILR.