For those in the UK who are considering settling in this country, the amount of absences that they can have during their stay in the UK, is a constant concern. This has become even more prevalent with the current pandemic and the coronavirus related lockdowns that most countries are implementing. Borders have been closed, travel disrupted and many have found themselves unable to return to the UK and worried how this will impact their future application for settlement. Therefore, understanding what are the exceptions for absences from the UK in an Indefinite Leave to Remain application is very important.
Routes that lead to settlement in the UK are various and each of those rules have specific residence requirements. However, they can be separated in 3 broad categories:
- Family life related leave – this includes migrants who are in the UK as spouse, unmarried partner of a British or settled person, as a parent to a child in UK or an adult dependent of a British or settled person;
- Points Based System applications, together with other work or business related applications, this includes Tier 1, Tier 2 migrants, as well as the Sole Representative of an Overseas business visa holders, those on ancestry visa, Innovators etc;
- Finally, the last category is for those who are relying on long residence, i.e. 10 year continuous period spent in the UK.
To understand what exceptions are available for absences to each of these categories, we must first consider the rules around the absences for each of them.
Family visa ILR applications: excess absences
When it comes to family visas, ie spouse visa, partner visa, child visa, parent of a child visa, adult dependent visa and other variations, the rules around residence and allowable absences for Indefinite Leave to Remain are the least strict.
In the case of the spouse and other family visas, there are no specific rules around absences. This means that there is no target amount of days you should aim to spend in the UK in any given 12 months period if you wish to eventually settle in the UK. However, it is still highly advisable that you do not spend more than 180 days outside of the UK.
The reason why cautious is still advisable and you always should aim to spend no more than 180 days in the UK is due to the wording of the Rules relating to Indefinite Leave to Remain for family visas. The Rules state that for an ILR to be granted the applicant must have completed a continuous period of either 60 or 120 months in the UK. As such, the Home Office will always put an emphasis on the fact that you must have spent time in fact residing in the UK and not simply held leave to remain, while residing elsewhere with visits to the UK. In short, your main residence should still be in the UK, which means you should spend more time in the UK than elsewhere.
However, if you have found yourself in an exceptional situation, such as the Covid-19 pandemic or other natural or man-made disaster that precluded you from travelling, or perhaps there where serious health reasons that required you to remain outside of the UK for majority of the 12 month period, you still might succeed with your ILR application. You will be required to explain your exceptional circumstances and provide evidence to back your claim up.
PBS and other work and business related ILR applications: excess absences
This category perhaps has the most restrictive requirements for Indefinite Leave to Remain when it comes to residence and absences.
As a general rules, all those who are on Points Based System visas (and since 2018 their family members as well), together with other work and business related visa holders will have to demonstrate that they have not been absent from the UK for more than 180 days in any given 12 months period. It is, however, essential to remember that there is another requirement attached to many of these visa routes.
Thus, absences must be for a reason consistent with the purpose of their leave or for compelling and compassionate reasons for the following categories:
- Sole Representative of an Overseas business;
- Domestic workers in Private households;
- Tier 2 General;
- Tier 2 (Intra-company Transfer)
- Tier 2 (Minister of Religion)
- Tier 2 (Sportsperson)
- Tier 5 (Temporary Workers)
What this means is that migrants falling under above categories should provide reasons for their absences, as well as evidence to substantiate their claim. Compelling and compassionate reasons are considered to be one of the following:
- Serious illness of you or of a close relative;
- A conflict that prevents you from travelling;
- A natural disaster. The current circumstances around Covid-19 should fall under this category by all rights.
Therefore, if you are someone with leave under one of these categories and you are currently unable to travel back to the UK, you will need to ensure that you have evidence to prove that your inability to travel was linked to
For the other visa types that fall under this categories such as Investors, Entrepreneurs, Exceptional Talent, Innovators etc there is no requirement to provide reasons for absences, but they will still need to ensure they have not been absent for more than 180 days in any given 12 month period.
If you have exceeded the 180 days allowable absences, your continuous leave will normally be considered to be broken and Indefinite Leave to Remain will be refused, unless exceptional circumstances are present and the Home Office agrees to exception discretion. The exceptional circumstances are the same as above : serious illness, conflict and natural disaster. Again, the current pandemic should fall under natural disaster and absences due to the lockdowns and travel restrictions discounted, however the Home Office has yet to make an official announcement in respect of this. In all events it is of outmost importance to ensure that you have ample evidence of your inability to travel due to the current measures related to combating the pandemic.
Long Residence ILR applications: excess absences
The rules around residence and absences in respect of the Long Residence Indefinite Leave to Remain applications are ad follows:
- You must have resided in the UK for a continuous period of not less than 10 years;
- Your residence must have been lawful for the entire period;
- You must not have more than 540 days of absences in the entire 10 year period and no more than 180 days absence in any 12 months period.
For this route to Settlement, if you spend time outside of the UK for more than 6 continuous months, your leave will be broken and you will need to start over again. Therefore, it is not only the excess absences that you need to concern yourself with, but also the actual break in your residence.
In respect of excess absences, where you have spent more than 180 days outside of the UK in one 12 month period or more than 540 days during the entire 10 year period, there is room for discretion. You must remember that normally such applications will be refused, however if you are able to demonstrate that the reasons for absences where due to compelling and compassionate circumstances, the application may still be granted. For this route the Home Office does not give a definition for compelling and compassionate circumstances, but rather refers to it as an absence that occurred through unavoidable circumstances.
Factors that the Home Office will look at to decide whether to apply their discretion or not include:
- Whether you returned to the UK within reasonable time once you were able to do so, therefore it is very important to return as soon as you are able to do so;
- If it’s one period of absence that is over 180 days then they will consider how much of it was due to the compelling circumstances, for instance if you already had reached the 180 days prior to the compelling circumstances incurring, then your application will be refused;
- For absences that pushed the overall limit of 540, the Home Office will look at when the excess absences happened and is more likely to grant you leave if they happened toward the end of your stay. This is because they consider that if you can meet the requirements in the near future, you should apply then and not rely on discretion.
In all circumstances, the need to ensure that you are well aware of the rules around absences is essential and you should consult an immigration specialist as soon as you have concerns that you might exceed your allowable absences.
As with all complex matters, if you are in such circumstances, it’s always advisable to get legal advice and representations when making an application, if you find yourself in a situation where you have exceeded the number of days you were allowed to spend outside of the UK.