180 days absence rule for ILR applications – Calculating Continuous Leave

On 11 January 2018, the Home Office made a change in 180 days absence rule for ILR applications, now instead of continuing to assess absences for ILR applications against a fixed consecutive 12-month period, as it previously has, its new position is that the maximum 180-day limit will apply to any rolling 12-month period during the qualifying period for ILR (this is usually five years but it may be less if the applicant is in a Tier 1 route and is applying under one of the accelerated ILR provisions).

The continuous period requirement is the minimum amount of time which a migrant must spend in employment or being active in the UK economy before being eligible to qualify for ILR.

A period between the issue of entry clearance and entering the UK

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the continuous 12-month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry. If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

180 whole days absence

No more than 180 days’ absences are allowed in a consecutive 12-month period. 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.

How to calculate 180 days absence

Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period. The UK Visas and Immigration will calculate the relevant qualifying period by counting backwards from whichever of the following is most beneficial to the applicant:

• the date of application
• the date of the decision
• any date up to 28 days after the date of application

Allowable Absences

Absences must be for a reason consistent with the original purpose of entry to the UK, or for a serious or compelling reason in the following categories:

• work permit holder
• a representative of an overseas business
• an employee of overseas governments (except those exempt from control) or the United Nations (UN) or other international organisation of which the UK is a member
• an airport-based operational staff of overseas-owned airlines
• domestic workers in private households

And the following subcategories of the points-based system:

• Tier 1 General (Closed)
• Tier 2 Intra-company transfer 
• Tier 2 General
• Tier 2 Minister of religion
• Tier 2 Sportsperson
• Tier 5 Temporary worker – International Agreement (private servants in diplomatic households granted under rules in place before 6 April 2012 only)

The applicant must provide evidence as explained below. For the categories below, there is no requirement to give a reason for absences if they do not exceed 180 days in a consecutive 12 month period:

• Tier 1 Exceptional talent (Tier 1 (Exceptional Talent) applicants can be endorsed under exceptional promise criteria and exceptional talent criteria. Those granted under the talent criteria are able to apply for indefinite leave to remain after 3 years. Accelerated settlement was introduced on 11 January 2018 but applies retrospectively to applicants already in the route. Applicants endorsed under the exceptional promise criteria qualify after 5 years.)
• Tier 1 Entrepreneur (Tier 1 (Entrepreneur) applicants may qualify for indefinite leave to remain after 3 or 5 years, depending on their level of business activity)
• Tier 1 Investor (Applicants may qualify for indefinite leave to remain after 2, 3 or 5 years, depending on their level of investments. )
• UK Ancestry
• Retired person of independent means
• Highly skilled migrant (This is for applicants qualifying under the HSMP judicial review (paragraph 135G and 245CD). Applicants may qualify for indefinite leave to remain after 4 years if they applied to the HSMP before 3 April 2006, or 5 years if they applied between 3 April 2006 and 7 November 2006)
• Points-Based System dependent

Absences linked to reason for being in the UK – evidential requirements

For all other categories, absences must be consistent with or connected to, the applicant’s sponsored or permitted employment or the permitted economic activity being carried out in the UK – for example, business trips or short secondments.

This also includes any paid annual leave which must be assessed on a case by case basis and should be in line with UK annual leave entitlement for settled workers. For example, the statutory leave entitlement is 5.6 weeks’ paid holiday each year, which for workers who work a 5 day week is 28 days’ paid leave. However, many employers provide 25 or 30 days’ paid leave a year, plus bank holidays.

Short visits outside the UK on weekends or other non-working days are consistent with the basis of stay and do not break the continuity of leave. You must count such absences towards the 180-day limit.

Absences for a serious or compelling reason – evidential requirements

Serious or compelling reasons will vary but can include:

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

The applicant must provide evidence in the form of a letter which sets out the reason for the absence of documents of support.

For example:

• medical certificates
• birth or death certificates
• evidence of disruption to travel arrangements

adivis

View author's profile | More posts from author