Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Since 13 December 2012, Americans coming to the UK with a visa issued under one of the popular ‘Points Based System’ categories, have been allowed to spend up to 180 days outside the UK in each 12 month period and still qualify for indefinite leave to remain at the end of five years. This 180 day period was calculated by looking back at each fixed 12 month period in the five years leading up to the date the applicant applied for indefinite leave to remain.
This calculation allowed applicants to plan their absences carefully by keeping a record of travel to and from the UK. It allowed employers to plan business trips for their sponsored employees and Tier 1 Entrepreneurs to manage their travel to monitor international business interests. Applicants could in fact travel for more than 180 days in a year, as long as the travel fell into two different fixed 12 month periods.
The Points Based System covers visas issued to sponsored workers, entrepreneurs and investors.
Unfortunately, a change to the Immigration Rules which came into effect on 11 January 2018, has thrown this careful planning into disarray. The 180 day limit is now to be applied to a rolling 12 month period. This new calculation is also to be applied retrospectively and will impact anyone who applies for indefinite leave to remain after January 2018.
There are obviously a number of troubling issues with this change, the most pressing of which is that the retrospective impact means applicants may find themselves at a disadvantage which they could not possibly have foreseen. More broadly, the new method of calculating absences is a logistical nightmare as it requires looking at every possible 12 month period over a five year period of time!
To try and mitigate the potential consequences of this change to the immigration rules, there is guidance on when it would be not be appropriate for this rule to be applied.
Where an applicant can provide a letter setting out reasons why this change will cause them exceptionally harsh consequences, the caseworker may consider disregarding this new method of calculation. This will generally only apply to absences prior to 11 January 2018 and will involve looking at the overall level of absences and the impact on the applicant of refusing an application for indefinite leave to remain.
Looking forward, it is now more important than ever for those coming to the UK to ensure they, and their family, have a good grip on their international travel.
The need for family members to monitor travel is a new one. Any dependant partner who applies for a new visa or an extension of their existing visa as the dependant of a points based system migrant from 11 January 2018, will also be subject to the restriction on absences to 180 days during that next grant of leave to remain. Historically it was common for partners to travel regularly as they may have continued to run a business overseas or care for family members overseas. We anticipate this change, going forward, is likely to have a significant impact therefore on a lot of families. While this is going to be a difficult change for families to adjust to, it does not have retrospective impact so historical absences won’t matter.
Applicants who think their historical travel may be caught by this change, should seek advice as soon as possible so they can understand the likely impact and what, if anything, they can do to mitigate against this.
Those Points Based System migrants already in the UK or arriving in the future who anticipate frequent travel should ensure they are carefully recording and planning this travel. It is important they understand the impact of travel which exceeds the 180 day limit in a rolling 12 month period. This may be more significant than simply delaying the time until they qualify for indefinite leave to remain. Sponsored workers, for example, may be limited to six years in the UK in that category. If they can’t obtain indefinite leave to remain because of absences during that time, they may have to leave the UK and face a 12 month cooling off period before obtaining a similar visa again.
This blog was first published in The American magazine, April 2018.
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