Immigration alert: Last chance to apply for Indefinite Leave to Remain in the Tier 1 General category but beware new continuous residence rules

17 January 2018

Last chance to apply for Indefinite Leave to Remain (ILR) in the Tier 1 (General) immigration category

The Tier 1 (General) category was closed to new applicants in April 2011 and following this, the possibility of extending in this category was removed in April 2015. For those applicants who are eligible, now is your last chance to apply for indefinite leave to remain in the UK, before this option is closed on 5 April 2018.

Applicants will need to continue to meet the requirements which they were able to satisfy when applying for their last extension to their visa and in addition they will need to ensure they have no criminal convictions which would lead to a refusal and can meet the continuous residence requirements. For some Tier 1 (General) migrants it was always going to be difficult to ensure they were not absent from the UK for more than 180 days in any 12 month period, counting backwards from the date of application for ILR. This was the continuous residence rule prior to January 11 2018, however, this requirement has potentially been made more difficult to achieve, following a recent change in the rules, see below.

New continuous residence requirements from 11 January 2018 for all work and Points Based System (PBS) immigration categories

The government has introduced changes to the way that continuous residence is calculated and it is now the case that applicants for ILR must not be absent from the UK for more than 180 days in any 12 month period, calculated on a rolling basis, throughout the five year qualifying period, prior to the date of application for ILR. Prior to this change, applicants needed to ensure they did not spend more than 180 days outside the UK during each 12 month period, counting backwards from the date of ILR. The absences were assessed against a fixed 12 month period and applicants may have had the flexibility to manage their absences during each of these 12 month blocks. Provided they still had a valid visa, applicants could opt to defer the application for ILR until they could meet the absence requirements, by reducing overseas travel for a period.

With the rule change, the flexibility has been removed and unfortunately the change will have retrospective effect. Those migrants who have travelled frequently for work or for secondments overseas, may well find that their absences exceed 180 days, for some 12 month periods, when calculated on a 12 month rolling basis. In order to mitigate the harshness of this rule change, the government has published guidance confirming that discretion may be used where exceptionally harsh consequences would result from an ILR refusal. Relevant factors the Home Office will look at include the pattern of absences both prior to and after the rule change and whether the applicant would be unable to qualify for ILR at a later date because they cannot extend their visa. This will apply to Tier 2 (General) migrants whose stay in the UK is capped at six years. This rule change could have an exceptionally harsh consequence if it means the applicant cannot obtain ILR and needs to leave the UK once the six years is up. Similarly for Tier 1 (General) migrants who cannot apply for ILR after 5 April 2018, it is to be hoped that the government will exercise its discretion to avoid these exceptionally harsh consequences.

Discretion can also be used where the excessive absence is due to serious illness of the applicant or a close relative, a conflict or a natural disaster. Other than in these scenarios, the guidance does state that there is no exemption for excess absences  due to business travel.

New continuous residence requirements to apply to PBS dependants

A further recent change to the immigration rules will bring PBS  dependants within the 180 days absence restriction. Previously it was the case that PBS dependants did not have to meet the requirement to ensure they were not absent from the UK for more than 180 days in any 12 month period. With effect from 11 January 2018, PBS dependants will need to ensure that following the grant of a new visa, their absences do not exceed 180 days in any 12 month period, calculated on a rolling basis. In so far as this rule change will only apply to absences following the grant of a visa after 11 January, it will not have retrospective effect. However, the rule change will mean that PBS dependants will potentially need to make significant changes to their lifestyle in order to ensure they can meet the 180 day absence restriction, following any future grant of a visa. For the avoidance of doubt, any dependant who will qualify for ILR whilst their existing visa is still valid will not be subject to the 180 days absence restrictions.

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