15 January 2018
Among the latest changes to the UK's immigration rules introduced on 11 January 2018, there are two particular amendments to absence rules that may affect migrant workers ability to qualify for Indefinite Leave to Remain (ILR).
ILR is UK permanent residency. This valuable right for eligible non-EEA citizens is often the goal of migrant workers and their families because it removes the conditions and time limit on their stay. For Tier 2 General workers, it may be the only way for them to remain in the UK beyond the capped six year period in that visa category. It is also a mandatory stepping stone to British citizenship for those that want it.
A Points Based System (PBS) migrant is only eligible for ILR if absences from the UK over the qualifying five year period do not exceed 180 days per year. That rule has not changed although there is a different method of calculation as explained below. However from 11 January 2018 the 180 day limit also applies to PBS dependants (spouses and unmarried partners, but not children) who were previously exempt from this requirement. Fortunately, it will not apply retrospectively meaning only absences from the UK by PBS dependants during periods of visa permission granted after 11 January 2018 will count towards the 180 days.
This means that a Tier 2 General dependant that applies for entry clearance overseas in April 2018 will need to comply with the 180 day limit to be eligible for ILR. But a Tier 2 General dependant granted a five year visa in 2014 will not, provided that he/she applies for ILR without needing to extend the visa in 2019. If that person were to extend the visa with their Tier 2 General partner for another 12 months, the 180 day rule would apply to that final year of the capped six year period, but not to the previous five years.
Before 11 January 2018, worker applicants for ILR – in both PBS routes and non-PBS routes such as Representatives of Overseas Business (sole representatives) and UK ancestry - needed to show that they had been absent from the UK for 180 days or less in each of the five consecutive 12 month periods counting backwards from the date of the ILR application. In other words, each 12 month period was fixed by reference to the date of the ILR application. This meant that each year's absence levels would fluctuate depending on the date selected for the ILR application. It provided some flexibility for the applicant - by shifting the ILR application date, a block period of overseas absence or frequent travel by international executives exceeding the permitted 180 days could, for example, be split between two different 12 month periods.
On 11 January 2018 this changed. The Home Office has described this as a "minor change", but in actual fact it has potentially severe consequences. The flexibility has been removed. Rather than assessing absence against a fixed 12 month period, the 180 day limit will now apply to any rolling 12 month period during the qualifying period (usually five years but it may be less if the applicant is in a Tier 1 route allowing accelerated ILR).
And there is a second sting in the tail. Unlike the change for PBS dependants this applies retrospectively - there is no difference in approach between visas granted before or after 11 January 2018. If absence is over 180 days in any 12 month period under this test, the continuous period will be broken. According to the latest guidance, discretion will then only be exercised to grant ILR outside the rules if:
It remains to be seen how serious the consequences must be to be deemed exceptionally harsh. One example relevant factor given in the guidance is the absence pattern before and after 11 January 2018. The second possible factor that could be taken into account is where the consequences of refusal would be exceptionally harsh, for example where the applicant cannot qualify for ILR at a later date because they are unable to extend their visa. We expect that discretion will be used only exceptionally - the guidance makes it clear that there is no exemption for absences exceeding 180 days for business travel or even for maternity, paternity or adoption leave.
Some PBS routes allow repeated extensions if the rules continue to be met. In our view the category of workers most at risk from this new interpretation and who may need to try and claim "exceptionally harsh consequences" are those in Tier 2 General. There is a six year cap for Tier 2 General visas – they cannot keep extending the visa. Anyone in that category who is not granted ILR before they reach the cap will have to leave the UK or apply to remain in a different visa route. Unless they have a job offer with a high-earner salary (currently £159,600 for Tier 2 General and £120,000 for Tier 2 ICT), a cooling-off period will also apply preventing that person from applying for a fresh Tier 2 visa for at least 12 months.
The changes do not apply to Tier 2 ICT migrants and their families as they are not eligible for ILR anyway. Other visa holders and their dependants who are potentially eligible for ILR will need to review their working and family arrangements to ensure compliance with these new rules. Those most at risk will be:
It is essential that these workers – and any PBS dependants in respect of any period of visa permission granted after 11 January 2018 - keep a detailed record of every trip made in and out of the UK. On their return to the UK after each overseas trip, applicants should calculate their cumulative absence over the previous 12 months. Applicants should consider their projected ILR application date and plan absences accordingly. It may be that applicants can avoid unnecessary travel if there is a risk of exceeding the limit or postpone trips until ILR has been granted. The 180 day rule does not apply to those holding ILR, although ILR can be forfeited with an absence from the UK of two years or more.
If you would like to discuss any of the issues in this update, please contact Charlie Pring or Vikki Wiberg.