In this blog, we are going to tell you more about how the absences are calculated for the purposes of ILR.
What is the requirement for absences from the UK?
Meeting the requirement for absences from the UK (sometimes referred to as the residency test) has long been mandatory for submitting ILR applications in the UK. Under the UK immigration regime, an immigrant is usually expected to complete a period of residency in the UK (in order to integrate into life in the UK) before they can become settled in the UK (i.e. obtain ILR), or be allowed to live in the UK permanently. The period of residency may be 2, 3, or 5 years depending on your visa route.
It follows that during this period of residency, applicants need to have lived in the UK for a set period of time. For most immigration routes it is at least six months of each year, though as explained below, there are various nuances on how this is calculated. Any days away from the UK are therefore known as “absences”.
There are two main ways in which the number of absences is calculated.
EU Settlement Scheme
For EU nationals and their family members with Pre-Settled Status, the rule is that they must not have been absent from the UK for more than 6 months in any rolling 12-month period during their qualifying period of residency (i.e. 5 years). The 12-month period is not fixed to any particular year or period, and it can be selected out of any 12-month periods within the qualifying period. This is known as the rolling basis.
Everyone else
For everyone else, the rule is that an applicant cannot have been absent from the UK for more than 180 days in any rolling 12-month period during their qualifying period of residency (which may be 2, 3, or 5 years). Again, this is calculated on a rolling basis.
If the qualifying period includes leave granted before 11 January 2018, then the calculation for absences during any period before 11 January 2018 is slightly different. For absences before 11 January 2018, you cannot have been absent from the UK for more than 180 days in any consecutive 12-month period. The consecutive 12- month periods are calculated from the date of application for ILR. This is known as the fixed basis. Under these circumstances, you will need to combine two methods of calculation for your absences, i.e. (1) Fixed basis and (2) Rolling basis, depending on when that particular absence occurred.
Where your absences exceed the threshold, you may need to extend your visa before you can qualify for ILR, though the Home Office’s policy does include various exceptions to the permitted number of absences (e.g. travel disruptions due to the pandemic). This blog will not dig deeper into those exceptions.
Furthermore, there are nuances in how the calculation works for new immigration routes (e.g. the Skilled Worker, Innovator, Global Talent, etc.) as opposed to old immigration routes (e.g. Tier 1 (Investor), Tier 1 (Entrepreneur), etc.). Similarly, the requirements for ILR via 10-year long residence and nationality are entirely different.
If you have doubts regarding which rules apply to your ILR application, please ensure that you contact us for advice.
Am I even subject to the requirement for absences from the UK?
There are situations where this requirement is not an issue, or where the Home Office does not impose a fixed threshold:
In some cases, time spent on certain immigration routes (e.g. student visa) does not count towards ILR (unless the ILR application is based on long residence).
In other cases, those who currently hold visas under Appendix FM (i.e. if they are the partner of a British citizen, or someone who is settled in the UK or has protection status in the UK), then there is no set threshold for absences. Instead, their intention throughout their time in the UK must be to live permanently in the UK together with their partner. If any absence runs contrary to that intention, there must be a good reason for it.
Additionally, the requirement for absences from the UK usually does not apply to children or dependent partners (whose leave was granted before 11 January 2018) of those who hold Tier 1, Tier 2, Tier 5, Global Talent, Start-up or Innovator visas.
Legal Advice
As demonstrated above, the calculations necessary to prove that you have met the requirement in respect of your absences from the UK are complex. There are further nuances concerning full days vs partial days, time between when your visa was granted and your entry into the UK, flexibilities on how the absences may be calculated, and so forth, which are not addressed in this blog. If you have any doubts about whether you qualify for ILR, or need assistance with your ILR application, please ensure that you contact us for advice.
How Gherson can assist
Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on Twitter, Facebook, Instagram, or LinkedIn to stay-up-to-date.
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 do not 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.
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