The Government has issued a new statement of changes ( HC309 ) to the Immigration Rules in December 2017. Part of the changes include new provisions that will affect how the Home Office assesses continuous residence for indefinite leave to remain (ILR) applications.

Certain visa categories require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for ILR. These include a number of the work-based categories such as Tier 2 General.

The current test for assessing continuous residence is in paragraph 245AAA(a)(i) of Part 6A of the Immigration Rules. This states that an applicant for ILR must not have been Absent from the UK for a period of 180 days or more in any of the five 12-month periods preceding the date of the application.

In practice, this means that if someone is applying for ILR on 10 January 2018, they have to count back 365 days to 11 January 2017 to check that they have not exceeded the 180-day limit in that period, and so on until the start of their five years’ residence in the UK.

EXAMPLE:

For instance, if the applicant is applying for ILR on the 10th of January 2018, the timeline is the following:

10 January 2018 – 11 January 2017 – 1 year (absent for 1 month or 30 days)

10 January 2017 – 11 January 2016 – 1 year (absent for 1 month, or 30 days)

10 January 2016 – 11 January 2015 – 1 year (absent for 2 months, or 60 days)

10 January 2015 – 11 January 2014 – 1 year (absent for 1 month, or 30 days)

10 January 2014 – 11 January 2013 – 1 year (absent for 2 months, or 60 days)

In this scenario, the applicant has not exceeded the 180 days maximum requirement, since for EVERY YEAR, they have only spent a maximum of 1-2 months, or 30-60 days, outside of the UK.

New Changes:

From 11 January 2018, the wording of the rule is going to change so that an applicant for ILR must not be absent for more than 180 days during any 12-month period over the five years. The substitution is made in section 6A.3 of the statement of changes: