Changes to Immigration Rules on continuous residence

In the latest round of changes to the Immigration Rules, two changes to the rules on continuous residence are likely to have a significant impact for many of those looking to secure indefinite leave to remain (ILR) in the UK.
The first change affects dependants of migrants here on points based system visas. Previously the dependant applicant for ILR did not have to meet the residence requirements i.e. there was no restriction on the dependant partner’s absence levels from the UK.  In practice, this meant that when it came to applying for ILR, the main applicant, often the wife, would be the one who had spent most of their time in the UK (perhaps caring for children who had been attending school in the UK), while the dependant partner, often the true investor or entrepreneur, continued to travel and spend a lot of time out of the UK in order to look after businesses overseas.
The rule change, which will affect applications made on or after 11 January 2018, will require both the main applicant and the dependant partner to meet the ILR residence requirements of no more than 180 days’ absence. This change will apply to any periods of leave granted under the new rules (i.e. after 11 January 2018).  However, there is a concern that the change will ultimately have a retrospective effect, since any families requiring to extend their visas in the coming months are unlikely to be able to change their business and personal affairs at such short notice. However, the amendment will not affect those who have already extended and can obtain ILR without extending again.
The second change has attracted less press attention but nonetheless has major implications for would-be ILR applicants. It involves what is described by the Home Office as a “minor change” to the rule which sets out how the 180 days’ absence is calculated.  Until now, the requirement has been to have no more than 180 days’ absence in any of the five 12-month periods prior to the date of application.  From 11 January 2018, the requirement will be to have no more than 180 days’ absence during any 12-month period in the five-year qualifying period.  This move, from a fixed block of 12-month periods to a rolling 12-month period, will make it more complex to calculate whether absences have exceeded the 180-day threshold. This small but critical change will effectively be retrospective, since it appears it will apply to any application for ILR made on or after 11 January 2018.
The second change could be a particular blow for those on Tier 2 General visas, for whom there is a six-year limit on the length of time they can remain in the UK in that category. If they do not qualify for ILR within that time, they will have to leave the UK and would not be eligible to re-apply under Tier 2 (unless they currently earn over £159,600) until a 12-month ‘cooling off’ period expires. This change could therefore be a considerable headache for employers of Tier 2 migrants who travel extensively for work.
It would be advisable for anyone who might be affected by these changes to look carefully at their travel history and start planning ahead.

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Laura Morrison

About Laura Morrison

Laura is a managing practice development lawyer based in Dentons' Edinburgh office, supporting the People, Reward and Mobility practice across the UK. She has more than 15 years' experience as an employment lawyer. Laura's responsibilities focus on supporting our fee earners through a variety of knowledge initiatives, from internal and external training to the development of innovative methods for service delivery.

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