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Changes to continuous residence rule for ILR applicants

08 January 2018

From 11 January 2018 new provisions are coming into force that will affect how the Home Office assesses continuous residence for indefinite leave to remain (ILR) applications.

Certain visa categories require an applicant to show they have been “continually resident” in the UK over a five year period before they can apply for ILR. These include a number of the work-based categories such as Tier 2 General.

The current test for assessing continuous residence states that an applicant for ILR must not have been absent from the UK for a period of 180 days or more in any of the five 12-month periods preceding the date of the application.

In practice, this means that if someone is applying for ILR on 10 January 2018, they have to count back 365 days to 11 January 2017 to check that they have not exceeded the 180-day limit in that period, and so on until the start of their five years’ residence in the UK.

From 11 January 2018, the wording of the rule is going to change so that an applicant for ILR must not be absent for more than 180 days during any 12 month period over the five years.

The difference is subtle but significant. It will mean that an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period. Absences are calculated on a rolling basis, instead of in fixed blocks.

To go back to the example above, if the applicant had spent seven months outside of the UK between October 2014 and April 2015, under the current rules their continual residence would not be broken: by applying on 10 January 2018 they could divide the absences across two different 12-month blocks. Under the new rules, the application is likely to be refused as the applicant was absent for over 180 days over a-12 month period.

Unlike the high profile changes to the absence criteria for ILR dependants announced at the same time, this new formula for calculating continuous residence will, in effect, be retrospective. Anyone applying for ILR on or after 11 January will be caught by it.

Our full article can be found here.

If you would like further information on any of the above, please do not hesitate to contact the immigration team at Lewis Silkin.

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