Roll on 06 July 2018...

The original assessment by the Home Office required that an ILR applicant must not be absent from the UK for more than 180 days in any of the five blocks of 12-month periods immediately preceding the application date.

A small change to the wording of the rule on 11 January 2018 (discussed by Joanna Hunt here) meant that applicants would instead be permitted absences of no more than 180 days during any 12-month period over the five years, i.e. rolling calculation of absences.

Unsurprisingly, the retrospective rule change has not been well received. Despite subsequent guidance giving case workers discretion to ignore absences over the new rolling threshold, if they occurred prior to the introduction of the new law on 11 January 2018, and where the effect of not ignoring them caused undue hardship to the migrant, there has been strong lobbying by immigration practitioners to introduce transition provisions, mitigating the retrospective effect of the rule change. Exceptionally, this has borne fruit and the Statement of Changes on 15 June 2018 confirms it’s all change again.

From 6 July 2018 onwards, the new rolling calculation will only apply to those migrants granted visas on or after 11 January 2018. All those granted visas/leave to remain before 11 January 2018 will have their absences calculated under the old, five blocks of 12 months calculation. So if a migrant has a 5 year visa granted on 10 January 2018, all their absences will be calculated under the old system when they apply for ILR in January 2023.

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