21 Mar 2017, 37 mins ago

In November 2015, the Home Office announced a change in its policy regarding how it calculates the continuous period of lawful residence in the UK when considering applications for settlement (ie Indefinite Leave to Remain (ILR)) from Tier 2 Migrants. The policy change comes into effect on 6 April 2016.

The Tier 2 route enables workers from outside the EEA to fill a particular vacancy that cannot be filled by a British or EEA worker. Once a Tier 2 Migrant has accrued a continuous period of 5 years spent lawfully in the UK, then he/she can apply for ILR. However, the applicant must not have had more than 180 days’ absence from the UK during each 12 months of this 5 year period.

When a visa national comes to the UK for the first time, there is usually a period of delay between the issue of their visa by the British Embassy abroad and their arrival in the UK. For obvious reasons, most applicants do not finalise their travel arrangements until they know they have been granted a visa. The treatment of this period of delay is the subject of the policy change.

Currently, applicants can include the period of delay (ie the time between the grant of their visa and their entry to the UK) as part of their continuous period of lawful residence in the UK as long as the delay is less than 90 days – if it is more, then the earliest the continuous period can start will be the date of entry to the UK. For example, if the applicant is applying for Indefinite Leave to Remain after 6 April 2016 and he entered the UK 100 days after he obtained entry clearance and has a further 81 days absence during the remainder of that 12 month period, he will have exceeded the maximum number of absences permitted from the UK (180 days).

The change may therefore affect the date on which some applicants are able to apply for ILR. Some of those with a long delay but few absences will benefit from the change, whereas others with a shorter delay but longer absences may have to wait longer before applying for ILR. In most cases, one would expect the difference in qualification for ILR to be a matter of weeks or months, rather than years.

The changes will not have any effect upon the calculation of the 5 year residence requirement for making a Nationality application, other than the knock-on effect that the date of the grant of ILR will have – ILR has to be held for at least a year before a naturalisation application can be made.

In conclusion, Tier 2 Migrants intending to apply for ILR in the UK after 5 April 2016 will need to check whether the change of the calculation in the continuous period of lawful residence might affect the date on which they will be able to meet the requirements. Should you require any further information or guidance in regards to this change, please contact Gherson who will be able to assist you.