Absence Doesn’t Always Make the Heart Grow Fonder…
January 2, 2018
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By: Azeem Mohiuddin
Last month, the Home Office published its most recent Statement of Changes to the Immigration Rules. In this blog, we pay particular attention to new provisions tightening the absences requirements for Points Based System (PBS) migrants applying for Indefinite Leave to Remain (ILR – ‘permanent residence’), which will come into force on 11 January 2018.
Absences requirement for ILR applications
At present, PBS migrants wishing to apply for ILR must not have spent 180 days or more outside of the UK in each of the 12-month periods preceding their application. Applicants look back at their absences in five blocks of 365 days from the date of application, e.g. 25 December 2017 back to 26 December 2016, 25 December 2016 to 26 December 2015 and so on. This has enabled applicants who travel frequently to plan proactively and determine when to make an ILR application (i.e. ensuring absences fall into distinct periods).
The new rules
The new rules now mandate that an applicant who has spent 180 days or more outside of the UK in any 12-month period throughout the qualifying period (usually five years) will no longer qualify for ILR. Applicants will no longer, therefore, be able to split large absences into different periods. They will also need to undertake a more burdensome review of their absences looking backwards for a 12-month period from every last date of return to the UK.
Whilst in practice, this change should not affect the majority of applicants, it could conceivably cause issues for those who frequently travel outside of the UK (typically senior members of staff or high net worth individuals). This rule change is particularly important to note as the Home Office intend to apply it retrospectively.
PBS dependants
To date, PBS dependants (and in this context, we are referring to spouses and unmarried partners) have not been required to meet the above absences threshold when applying for ILR. This has been of particular benefit to dependants of high net worth individuals, who may not spend much time in the UK.
The new rules confirm, however, that PBS dependants will also now need to meet the same requirements when applying for ILR. The new requirements will however only be applied to those PBS dependants who on or after 11 January 2018:
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Apply for a new visa from outside the UK; or
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Extend their existing dependant status.
What do these changes mean for PBS migrants and their dependants?
At the very least both PBS migrants and their dependants must begin to more closely monitor the time they spend outside the UK, if they have an intention to make the UK their main home in the long term. It will also result in more of an administrative headache when preparing for ILR applications in the future.
Children are not strictly required to meet the absences requirement, but may be unable to qualify for ILR in any event if both parents do not qualify.
What can I do?
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Keep an eye on when you would be eligible to apply for ILR;
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Maintain a detailed record of all your absences from the UK;
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Consider whether you are eligible to apply for ILR before 11 Jan 2018 (or if you are a PBS dependant already in the UK, extend your visa before this date);
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Avoid unnecessary absences from the UK where possible.
Conclusion
The rule changes discussed are technical in nature and may not apply in all circumstances. They do, however, have the potential to cause some real problems for those who would like to settle in the UK, but are required to travel frequently.
If you have any questions our expert immigration specialists will be happy to assist and you can contact us here.
