Head of Immigration Ivon Sampson clarifies the Home Office’s position on permitted absences when applying for Indefinite Leave to Remain.
I was asked yesterday by a prospective client on whether her business-related activities abroad would count towards her absences from the UK or whether they are excluded.
I advised her that there is a misconception by those holding Tier 1 Investor Visas on how long they have to stay in the UK in any one year. I advised her that there is no requirement under the immigration rules when a Tier 1 Investor makes an initial application to state any intention to actually live in the UK for any set amount of time. Also, when an applicant wishes to extend their leave to remain in the UK, Tier 1 Investor visa holders do not need to show that they have spent any specific amount of days in the UK, or that in the future they have an intention to spend a particular amount of time in the UK. Needless to say the person I advised was pleasantly surprised as she had been given contrary and incorrect advice.
The point to note is that the minimum residence requirement only becomes relevant if a Tier 1 Investor decides to apply for Indefinite Leave to Remain (settlement) in the UK.
The residence requirement for the main applicant in ILR applications is that they must have no more than 180 days’ absence from the UK in any 12 calendar month period. This means that in order to settle, an applicant must have spent a little over half their time in the UK. Days which are spent travelling to or from the UK do not count.
If a Tier 1 applicant does not meet the residence requirement and cannot therefore apply for Indefinite Leave to Remain, they can instead make an application to extend their stay rather than settle, providing that they still meet the requirements of the Tier 1 investor category.
An important point to note is that there is no discretion in the Immigration Rules, for those who do not meet this requirement. Paragraph 124-127 of the Home Office Policy Guidance provided more guidance on this point:
“124. You cannot have had more than 180 days’ absence from the United Kingdom during any consecutive 12 months of the qualifying period.
125. You will need to list details of your absences from the United Kingdom, including the reasons for those absences, on the form but you will not need to provide any specified evidence to support this.
127. Whatever the reason for any absences from the United Kingdom, they will still be counted towards the maximum 180 days (but see information about delayed entry to the UK below). This includes any absences for work reasons, or serious and compelling reasons. The only exception is where you have been absent from the United Kingdom assisting with a national or international humanitarian or environmental crisis, such as the Ebola crisis which began in West Africa in 2014 and you can provide evidence that this was the purpose of the absence.
128. You can include time between your entry clearance being granted and you entering the United Kingdom as part of your continuous period. Absences between the date entry clearance is granted and the date you enter the United Kingdom are treated as an absence from the United Kingdom and will form part of the 180 days allowed within a continuous 12-month period”.
It is very important therefore, if a person wants to apply for ILR that they monitor their absences from the UK to ensure that they are able to meet this requirement.