I Want To Apply For Indefinite Leave To Remain In The UK. Are There Exemptions To The 180-Day Allowable Absence Rule From The UK?

Eligibility for Indefinite Leave to Remain in the UK usually requires you to have completed 5 years’ continuous residence in the UK in one of the following categories:

• Representative of an overseas business;
• UK Ancestry; 
• Tier 2 (General), (Sportsperson), (Minister of Religion);
• Tier 1 (Investor) or
• Tier 1 (Exceptional Promise) if the last endorsement was given under the “exceptional promise” criteria for Arts Council England or Tech Nation.

Some visa categories allow you to apply or Indefinite Leave to Remain on an accelerated basis. These include:

• Innovator – applicants can apply for Indefinite Leave to Remain after 3 years, depending on business achievements;
• Global Talent – 3 years if;

1. Last endorsed “exceptional talent” criteria; or
2. Endorsed in the “exceptional promise” criteria for Royal Society, British Academy or Royal Academy of Engineering, or
3. Endorsed under the UK Research and Innovation (UKRI) “endorsed funder” fast track criteria’; 

• Tier 1 (Investor) – 2 or 3 years depending on the level of investment. 

Absences which do not count towards the 180 days’ absences limit

1. Absences for serious or compelling reasons

Absences for serious or compelling reasons may be excluded from the 180-day absence requirements. The reasons for this may include, but are not limited to: 

• Serious illness of the applicant or a close relative; 
• A conflict; 
• A natural disaster, for example, volcanic eruption or tsunami. 

The COVID-19 pandemic has meant some migrants have struggled to return to the UK, which may impact their absences and eligibility to apply for Indefinite Leave to Remain. Whilst the Home Office has not yet provided a concession in this regard, the pandemic may fall within the natural disaster criteria. If you have been affected by COVID-19 in this regard and would like further information, please do not hesitate to contact us.

2. Absences for research purposes (Tier 2 (General))

Where you are sponsored to work in a PhD level occupation and your absences are linked to research purposes, those absences will not count towards the 180-day limit.

The research must be linked to the reason for your Tier 2 sponsorship and must have been agreed by your Sponsor.

3. Absences due to economic or humanitarian crisis 

Any absences from the UK as a result of assisting with a national, international, economic or humanitarian crisis, such as the Ebola crisis, will also be discounted.

4. Absences linked to an endorsement (Global Talent and Tier 1 (Exceptional Talent))

If you have leave as a Global Talent or Tier 1 (Exceptional Talent) migrant, you can have absences from the UK which will not count towards the 180-day limit, if all of the following apply:

• Your endorsement was given by the Royal Society, British Academy, Royal Academy of Engineering or UK Research and Innovation (UKRI);
• The purpose of the absence was linked to your grant of leave (such as a scientist undertaking research overseas); and
• Your absence occurred while you held leave as either a Global Talent or Tier 1 (Exceptional Talent) migrant.

Please note that if you have a dependent spouse or child, the absence requirements are different.

Should you require any further information in respect of the above, or in light of your current circumstances and a prospective application for Indefinite Leave to Remain in the UK, please do not hesitate to contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

  Sasha Lal

  Consultant and trainee solicitor in our Corporate Team