The Continuous Residency requirement is a question of fact; however, the recent statement of changes to the Immigration Rules means many Indefinite Leave to Remain (“ILR”) Applicants must reconsider whether they satisfy the Continuous Residency requirement. Our expert immigration team has comprehensive knowledge and understanding of the Immigration Rules, and our solicitors can advise you on whether you meet the Continuous Residency requirement for your ILR application and the necessary documents that are required in order to demonstrate this.
Continuous Residency for Indefinite Leave to Remain
Point-Based System visas allow applications for ILR, also referred to as settlement, generally upon 5 years of legal and Continuous Residency by an Applicant. These visas include:
- Tier 1 Entrepreneur visas;
- Tier 1 Graduate Entrepreneur visas;
- Tier 1 Exceptional Talent visas;
- Tier 1 Investor visas;
- Tier 2 General visas;
- Tier 2 Intra-company Transfer (ICT) visas;
- Tier 2 Minister of Religion visas; and
- Tier 2 Sportsperson visas.
Earlier settlement is possible depending on meeting the requirements for each category; For example, the Tier 1 Investor visa allows 2-year, 3-year and 5-year settlement routes. Among others, some common law work visas also require the legal and Continuous Residency of 4 or 5 years before the applicant can apply for settlement. These include the visa for:
- a Sole Representative of an overseas business and
- a commonwealth citizen with British ancestry.
Update on the Continuous Residency Requirement
For work related settlement applications, the existing Immigration Rules stipulate that Continuous Residency means an unbroken period with valid leave where “the applicant has been absent from the UK for a period of 180 days or less in any of the … consecutive 12 calendar month periods … preceding the date of the application for leave to remain”.
The current Home Office guidance states that the following periods count as absence:
- absences between the date of issuing the visa and the date of entry to the UK, however, the applicant does not need to provide evidence to explain the reason for the delayed entry; or
- only whole days of absence count as absence; part day absences, such as dates of inbound and outbound flights, do not count in the absence period.
Under the current Immigration Rules, an Applicant with more than 180 days of absence in a single year may still qualify for settlement, provided at the time of the application, the specified continuous periods counted backwards from the date of application do not contain an absence period over 180 days. This is the case in the following example:
- Lily first came to the UK on 1 January 2012 and applied for ILR on 1 February 2017;
- Lily has 0 days of absence in 2014, and 181 days of absence in 2015, one absent day is in January 2015;
- There are no other absence during the last 5 years of Lily’s residency;
- Therefore, under the current rules, the absences counting backwards is as follows:
- from 1 February 2017 to 2 February 2016 is 0 day of absence;
- from 1 February 2016 to 2 February 2015 is 180 days of absence;
- from 1 February 2015 to 2 February 2014 is 1 day of absence;
- from 1 February 2014 to 2 February 2013 is 0 day of absence; and
- from 1 February 2013 to 2 February 2012 is 0 day of absence.
Under the current rules, the Applicant can prove Continuous Residency within the specified 5 year period up to the date of application, despite having a 181 day absence in the year 2015. However, this calculation is due to be changed on 11 January 2018. Many may not satisfy the continuous residency requirement come this Thursday.
The Statement of Changes stipulates, “references to a ‘continuous period’ of 5 years or 4 years… mean… the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period…” with exceptions of humanitarian and environmental work overseas. The new rule applies to applications submitted on Thursday and onward, where Lily would not have satisfied the Continuous Residency requirement for the settlement application:
- Lily first came to the UK on 1 January 2012 and applied for ILR on 1 February 2017;
- Under the new rules, Lily will need to consider the following with great attention to detail before applying for ILR:
- There are less than 180 days of absence in each year;
- There are less than 180 days of absence during any 12 month period within the specified period for continuous residency;
- Before going away from the UK, number of absent days for the planned journey plus the period of absence in the last 12 months do not exceed 180 days;
- After coming back to the UK and spending 180 days outside the UK, the next time Lily can travel abroad is from the date of the first day of absence in the last 12 months counted from the date of return plus 1 year.
Reason for Absences must be Consistent with the Purpose of Original Visa
If the Applicant does exceed the allowed number of absences, recourse may be had if the absences can be justified as allowable reasons for absences, which in general, must be consistent with the purpose of the original visa granted or justified by serious or compelling reasons. This will be at the discretion of the Home Office case worker, so it is important that Applicants put forward a strong argument.
Using Legal Representation to submit Successful Work Visa Applications following the UK Business Immigration Update
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a work visa application.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successful Work Visa Applications following the UK Business Immigration Update
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02030110276 or complete our contact form.