Calculating Absences for Tier 2 Indefinite Leave to Remain (ILR)

If you are a non-EEA national who has now been in the UK long enough to acquire Indefinite Leave to Remain (ILR), it is essential that you check all aspects of your eligibility before you apply. This is because if you submit an application and are subsequently refused because you do not qualify for ILR, then you not only risk losing your application fee, but the time and effort you will have gone to will be wasted. One of the most common reasons for refusal by the Home Office is not meeting the period of continuous leave in the UK requirement. This can vary between three years under the accelerated settlement scheme, to ten years under the long residence route. In most cases, migrants will qualify after having spent five continuous years in the UK. In this article, we will explain how the Home Office will calculate absences from the UK for those applying after holding a Tier 2 work visa for five years.

What Is Meant by A Continuous Period?

Contrary to the understanding of many migrants, continuous does not mean that you are not allowed to leave the UK at all. Far from it. As long as you have not been out of the UK for more than 180 days in a twelve-month period during the five years, then you will not have broken the continuous period.

The guidance specifically states, “No more than 180 days’ absences are allowed in a consecutive 12-month period. You must only include whole days in this calculation. Part-day absences, for example, less than 24 hours, are not counted. Therefore, if the applicant had a single absence during the 12-month period and arrived in the UK on day 181, the period would not exceed 180 days”.

It is always recommended that you list every period of absence from the UK so you can double-check that you have not broken the continuous period in the UK. As the guidance says, you only need to work on the basis of whole days.

You are allowed to submit your ILR application up to 28 days before you reach the end of the qualifying period, and Home Office caseworkers are required to count backward from whichever date is most beneficial to you as the applicant; either the date of your application, the date of the decision or any date up to 28 days after the date of application.

It may be useful to note that you can also include the period between you being given clearance to enter the UK and when you actually enter the UK. Hence, delayed initial entry to the UK may work in your favour.

Another aspect to consider is that for settlement applications made from 11th January 2018, absences from the UK have to be worked out on a rolling basis, not individual consecutive periods of 12 months. The guidance states that “If the applicant’s qualifying period includes leave granted before this date, any absences during that leave will be considered under the previous rules – in separate 12-month periods ending on the date of application”.

Given the number of rules and changes in Home Office policy over time, it is recommended that you engage the services of specialist immigration lawyers who can work out whether you meet the continuous period required for ILR.

What Types of Absences Are Allowed?

This is often an overlooked aspect of the continuous period calculation process. The Home Office guidance explains that, as in the case of Tier 2 (general) work visas, “absences must be for a reason consistent with the original purpose of entry to the UK, or for a serious or compelling reason”.

For a Tier 2 worker, acceptable reasons for any absence may include business trips, work secondments, or conferences connected to your employment. They may also include holidays which are in line with UK annual leave entitlement. For this reason, you will need to provide a letter from your employer explaining the reasons for your absence from the country. The guidance provides more detail on this, “Evidence in the form of a letter from the employer which sets out the reasons for the absences, including annual leave, must be provided. Where short visits outside the UK, on weekends or other non-working days have taken place, evidence from the employer should be provided to confirm the applicant’s normal working pattern and show the absences occurred during a non-working period”.

The Home Office specifically states that time spent away from the UK for extended periods, may not be allowed, but short weekend breaks are permissible.

What If I Have Exceeded the Allowable Period of Time Away from the UK?

If you have been outside of the UK for more than the allowed 180 days in any year, then you will need to provide serious or compelling reasons for this. These may include:

• serious illness of the applicant or a close relative
• a conflict
• a natural disaster, for example, volcanic eruption or tsunami

It is also likely that if you were unable to return to the UK on time due to a COVID-19 lockdown, this may be taken into account by the Home Office. You will be expected to provide written evidence outlining the reasons for the extended absence, for example, a medical certificate, birth or death certificates, a letter from a doctor, or other evidence of disruption to travel arrangements.

Final Words

Immigration Solicitors are well versed in the continuous period rules for all visa types and will be able to assess whether you meet the time needed to acquire ILR. In most cases, if they can see a possible problem, they will be able to write a detailed covering letter which explains to the Home Office case officer why you meet the continuous residence period. In the majority of these cases, this is sufficient to secure a positive decision.

Related article

How to calculate absences for a 10-year long residence ILR route