UK Visas and Immigration updated Guidance and the Immigration Rules: Points-based system Tier 2
The UKVI updated the Tier 2 Guidance and the Immigration Rules for the points-based system on 11th January 2018.
The following change in the rules are applicable for those applying for indefinite leave to remain under the points-based system (Tier 1 and Tier 2 applicants).
(i) Removal of the 60-day rule when calculating continuous period in the UK
The updated guidance removes the Tier 2 rule covering gaps in employment of 60 days. The guidance provides that;
“An amendment is being made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.”
A leave can be curtailed by the Home Office to 60 days starting from the date of the decision to curtail leave is made. This implies that the migrant worker effectively has 60 days from the date of deemed service to make an application for leave in another category or find an alternative sponsor.
The above removal means that as long as the migrant worker is able to find an alternate sponsor or apply under different category within the 60 days period then the continuous residence is not considered broken for the purposes of indefinite leave to remain application.
It is worth noting that the 60 days curtailed leave is distinguished from the 60 days in the Guidance which is 60 days from the end of your employment date which is logged on the Sponsorship Management System. Therefore, the worker has 60 days to find another job or apply under another category from the curtailment letter date.
(ii) Changes to Immigration Rules 245AAA (a)(i) Calculating the 5-year continuous period in the UK
The recent changes to the Immigration Rules states that in order to eligible for indefinite leave to remain under the points-based system;
‘’ the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;’’
This indicates that the Home Office will take a harsher approach when calculating the 180 days absences as they can take any consecutive 12 months period within the 5-year period.
– Old Rules: If your qualifying date for indefinite leave to remain is 1st Jan 2018, under the previous rules, the Home Office would have calculated the absences from 1st Jan 2018 to 1st Jan 2017, 1st Jan 2017 to 1st Jan 2016, 1st Jan 2016 to 1st Jan 2015 etc.
– New Rules: If your qualifying date for indefinite leave to remain is 1st Jan 2018, under the current rules, the Home Office can take any consecutive 12-month period during the 5 years.
For more information on this change, please refer to our previous article: http://www.bararassociates.com/updated-guidance-indefinite-leave-remain-calculating-continuous-period-uk/
If you have any problems calculating the continuous residence or require further advice please do not hesitate to contact us.
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.