Updated guidance “Indefinite Leave to Remain: calculating continuous period in the UK”
This guidance covers how to calculate the 5-year continuous lawful period in the UK requirement for applicants applying for indefinite leave to remain (settlement). It also covers accelerated settlement in relevant categories.
Changes from last guidance version:
– makes changes to the section covering 180 days’ absence in a 12-month period;
– adds Points Based system (PBS) dependants as a category covered by this guidance;
– removes the Tier 2 rule covering gaps in employment of 60 days;
– removes references to equivalent routes in the Crown Dependencies – Information on leave held in the Crown Dependencies has been moved to Common Travel Area guidance.
This updated guidance replaces the Indefinite leave to remain: calculating continuous period in UK modernised guidance version 15.0 which has been withdrawn and archived.
According to the new guidance, “no more than 180 days’ absences are allowed in a consecutive 12-month period”.
From 11 January 2018, the rules refer to absences in any rolling 12-month period, whereas previously they referred to absences in block of 12 months starting at the date of the application’s submission.
o Under the previous rule
If an application is submitted on 01 January 2018, the Home Office will calculate the 180 days’ absences from:
– 01 January 2018 to 01 January 2017
– 01 January 2017 to 01 January 2016
– 01 January 2016 to 01 January 2015
– 01 January 2015 to 01 January 2014
– 01 January 2014 to 01 January 2013
o Under the new rule
If an application is submitted on 01 January 2018, the Home Office can calculate the 180 days’ absences for any consecutive 12-month periods from 01 January 2013 to 01 January 2018.
For instance, if the applicant has 190 days of absences in:
– September and December 2016 and,
– February and July 2017
The Home Office can calculate the absences from August 2016 to August 2017.
Whereas under the old rules, the 190 days absences could be divided and calculated separately under year 2016 and 2017 so that the applicant can still fall eligible for the rules.
On 11 January 2018, the Immigration Rules were amended to discount any absences from the UK from counting towards the 180-day limit where the absence was due to the applicant assisting with a national or international economic or humanitarian crisis, such as the Ebola crisis which began in West Africa in 2014.
This covers all Tier 1 and Tier 2 applicants. ILR applicants should provide evidence from their sponsor (if applicable), employer or similar organisation to confirm that the absence was related to a crisis.
Absences of more than 180 days in a 12-month period before the date of application will mean the continuous period has been broken. However, the Home Office may consider the grant of indefinite leave to remain outside the rules if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.
The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents.
Serious or compelling reasons will vary but can include:
– serious illness of the applicant or a close relative
– a conflict
– a natural disaster, for example, volcanic eruption or tsunami
Absences of more than 180 days in any 12-month for employment or economic activity reasons are not considered exceptional therefore cannot be discounted.
An applicant can also provide a letter setting out reasons why they believe changes to how the 180 days are counted will cause them exceptionally harsh consequences.
PBS dependants and spouse now have to satisfy the 180 days requirement. They must be absent from the UK for no more than 180 days in any consecutive 12-month periods. However, they do not need to include any absence from the UK during periods of leave/visa granted under the Immigration Rules in place before 11 January 2018 towards the 180 days allowable absences.
Previously, for Tier 2 migrants, the 5 year continuous employment requirement in the UK was not considered to be broken when, during a break in employment, the applicant applied for further leave as a Tier 2 migrant within 60 days of the end of their previous employment. Unfortunately, this is not applicable anymore.
The Appellant was a citizen of Vietnam, who made an application for further leave to remain under Tier 4 (General) Student visa, which was refused on 9th November 2014 by the Secretary of State for the Home Department. The main ground was on the basis of non-compliance with the maintenance requirements. As according to the Immigration Rules requirements, the Appellant was required to have at least £2,040 during the relevant of 28 consecutive days. However, the Appellant’s bank statements demonstrated a balance of £2,028.32. Due to which, the Appellant’s application for further leave to remain was refused. The Appellant’s appeal to the First-tier Tribunal was successful according to the principle of de “minimis” by giving the following explanation:
– The shortfall was occurred in the Appellant’s bank account by £11.68 during the first 20 days of the 28-day period;
– However, on the 21st day, the balance was reduced by £1.69;
– On the 22nd till 28th days the balance was above the minimum required by £3.31;
Therefore, the Judge’s reasoning was that the non-compliance was so minimum, thus the Secretary of State should have considered as complied with the Immigration Rules. However, the Secretary of State appealed to the Upper-tier Tribunal stating the FtT judge erred in law.
De Minimis Principle
The First-tier Tribunal made its decision based on the following:
– Firstly, the Judge referred to R (Behary) v Secretary of State for the Home Department  EWHC 3575 (Admin) where Tier 4 (General) was refused on the grounds that out of time, was received two days after the expiry of extant leave. Deputy Judge accepted this by applying de minimis principle. However, the Judge rejected this argument on the basis of two grounds: non-compliance with the Immigration Rules cannon be considered minimum and when non-compliance occurred legal certainty principle should be applied by carrying out “bright line”;
– Secondly, in the case of MD (Jamaica) and GE (Jamaica) v SSHD  EWCA Civ 213 the first Appellant was over stayer for two periods within 12 years, of some three weeks and four months’ duration respectively, where the second Appellant was over stayer for ten weeks due to having made a late application, which was eventually successful. However, Dyson LJ dismissed both appeals;
– The final landmark case is Miah and Others v SSHD  EWCA Civ 261, where the Appellant was eligible for Indefinite Leave to Remain as a work permit holder, however, during the qualifying period he had no extant work permit for 2 months. The Appellant argued that “near miss” must be forgiven.
However, Stanley Burton LJ stated that “near miss” is not the same as “de minimis” principle.
Therefore, in this case not complying with the five years’ lawful residence was not de minimis.
The judge dismissed the appeal as there is no near-miss principle applicable to the Immigration Rules.
The Mccloskey concluded that the FtT erred in law as the appellant did not comply with mandatory requirement of the Immigration Rules, which is considered rigid.
The principle de minimis does not apply in applications of the Immigration Rules. The principle is not used in a context where the question is whether a requirement of the Immigration Rules has been observed as both Immigration Rules and the Point Based System clearly states what requirements to be met or points to be obtained. Thus, de minimis is a mere substitute for sliding scale or near miss principles.
According to the latest guidance on Long Residence and indefinite leave to remain, which was published on 8th May 2015, there is a new element of discretion in relation to continuous residence and allows for a grant of leave outside the Immigration Rules in appropriate circumstances. The Guidance states:
if the applicant has been absent from the UK for more than 6 months in on one period and more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances.