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Big changes to continuous residence rule for ILR applicants under PBS

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

raaji
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by raaji » Mon Mar 12, 2018 2:41 pm

thank you

so any absences after 11 jan 2018 will be count for ILR (PBS Dependant) who got initial and extension before new rule 11 jan 2018.

"14/02/2014 to 14/02/2015 - enterd uk 59 days later
14/02/2015 to 14/02/2016 - 0 days
14/02/2016 to 14/02/2017 - 30 days
14/02/2017 to 14/02/2018 - 9 days
14/02/2018 to 31/03/2019 - she is now in sri lanka after baby born in uk . she went 05/02/2018 and planning to stay 8 months until 30/09/2018. "

this 8 month leave will affect ilr?

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by marcnath » Mon Mar 12, 2018 3:02 pm

raaji wrote:
Mon Mar 12, 2018 2:41 pm
thank you

so any absences after 11 jan 2018 will be count for ILR (PBS Dependant) who got initial and extension before new rule 11 jan 2018.

"14/02/2014 to 14/02/2015 - enterd uk 59 days later
14/02/2015 to 14/02/2016 - 0 days
14/02/2016 to 14/02/2017 - 30 days
14/02/2017 to 14/02/2018 - 9 days
14/02/2018 to 31/03/2019 - she is now in sri lanka after baby born in uk . she went 05/02/2018 and planning to stay 8 months until 30/09/2018. "

this 8 month leave will affect ilr?
If you answer NO to 6.13 and follow the instructions in the form, you will go to Section 7.

Which then means you are NOT filling in 6.14 with the absences. So, clearly the CW has no information on the absence period

Yes, there appears to be a mistake in the guidance, but the immigration rules are clear and the form seems to follow the immigration rules correctly.
My comments are in no way meant to be advisory. I have no professional knowledge of immigration. These are based on my own experience, convictions and personal interpretation of publicly available information.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by raaji » Fri Mar 16, 2018 8:07 am

SET(O) FORM...
Section 6 - Immigration history
You are not required to complete this section if you are applying in the bereaved partner
categories.
6.1 When did you (the main applicant) first enter the UK? This refers to the date you entered the
UK at the beginning of the period of stay on which this application is based.
D D M M Y Y Y Y
6.2 Since then have you had any absences from the UK? If yes, give the dates you left and
returned to the UK and the reason for the absence in the spaces below. List all absences
however short and in date order. If you need more space, continue on a separate sheet and
enclose it with your application.
Yes No
Date left UK Date returned to UK Reason for absence

....................................................................
Please complete this section for all dependants who are applying.
Photocopy this page if necessary.
6.12 When did you (the dependant) first enter the UK? This refers to the date you entered the
UK at the beginning of the period of stay on which this application is based.
D D M M Y Y Y Y
6.13 Does the period of stay on which this application was based include any leave granted
since 11 January 2018? If yes, go to next question. If no, go to section 7.
6.14 Have you had any absences from the UK during any leave granted since 11 January 2018?
Yes No
If yes give the dates you left and returned to the UK and the reason for the absence in the
spaces below. List all absences however short and in date order. If you need more space,
continue on a separate sheet and enclose it with your application.
Date left UK Date returned to UK Reason for absence

I got ILR my wife (tier 1g pbs dependant) as a main applicant.
section 6 how can i fill the form
can i leave blan section 6.1 and fill section 6.12??

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by CR001 » Fri Mar 16, 2018 8:19 am

raaji wrote:
Fri Mar 16, 2018 8:07 am
SET(O) FORM...
Section 6 - Immigration history
You are not required to complete this section if you are applying in the bereaved partner
categories.
6.1 When did you (the main applicant) first enter the UK? This refers to the date you entered the
UK at the beginning of the period of stay on which this application is based.
D D M M Y Y Y Y
6.2 Since then have you had any absences from the UK? If yes, give the dates you left and
returned to the UK and the reason for the absence in the spaces below. List all absences
however short and in date order. If you need more space, continue on a separate sheet and
enclose it with your application.
Yes No
Date left UK Date returned to UK Reason for absence

....................................................................
Please complete this section for all dependants who are applying.
Photocopy this page if necessary.
6.12 When did you (the dependant) first enter the UK? This refers to the date you entered the
UK at the beginning of the period of stay on which this application is based.
D D M M Y Y Y Y
6.13 Does the period of stay on which this application was based include any leave granted
since 11 January 2018? If yes, go to next question. If no, go to section 7.
6.14 Have you had any absences from the UK during any leave granted since 11 January 2018?
Yes No
If yes give the dates you left and returned to the UK and the reason for the absence in the
spaces below. List all absences however short and in date order. If you need more space,
continue on a separate sheet and enclose it with your application.
Date left UK Date returned to UK Reason for absence

I got ILR my wife (tier 1g pbs dependant) as a main applicant.
section 6 how can i fill the form
can i leave blan section 6.1 and fill section 6.12??
You should post in your own topic or start one rather than positing continuous questions about the set of form in this topic which is only about the rules changes. It is not a general advice topic.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by konda.manasa » Tue Mar 27, 2018 8:11 am

Hi,

My name is Manasa and I am eligible for ILR this August 2018. But I have plans to travel to USA for 110 days. My travel dates are from June to August. I see the recent amendments for the PBS dependent (I am a tier-1 dependent) and my husband is a British Citizen for a continual stay in the UK for the last 12 months from the date of application. Please, could someone help me in confirming that it is 180 days exempt or 90 days exempt for a PBS tier-1 dependent for applying ILR. If it is 90 days then I have to amend my dates for the trip. Your valuable inputs help me decide further. Thanks ina dvance.

Kind regards,

Manasa Konda



vinny wrote:
Mon Jan 08, 2018 10:32 am
Big changes to continuous residence rule for ILR applicants > HC309, in effect from 11 January 2018.
6A.3 wrote:In paragraph 245AAA(a), for:
“(a) “continuous period of 5 years lawfully in the UK” means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:
(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);”,

substitute:

“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;”.
Changes to continuous residence rule for ILR applicants wrote:....

The difference is subtle but significant. It will mean that an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period. Absences are calculated on a rolling basis, instead of in fixed blocks.

To go back to the example above, if the applicant had spent seven months outside of the UK between October 2014 and April 2015, under the current rules their continual residence would not be broken: by applying on 10 January 2018 they could divide the absences across two different 12-month blocks. Under the new rules, the application is likely to be refused as the applicant was absent for over 180 days over a-12 month period.
...
Unlike the high profile changes to the absence criteria for ILR dependants announced at the same time, this new formula for calculating continuous residence will, in effect, be retrospective. Anyone applying for ILR on or after 11 January will be caught by it.
Big changes to continuous residence rule for ILR applicants wrote: In the explanatory memorandum, the Home Office refers to this as a “minor change”. Quite the contrary. It will have massive ramifications for anyone who travels frequently out of the UK and has been carefully planning their trips abroad over the last few years to keep within the current rules.
....
National Law Review wrote:The 180 days’ absence from the UK will now be calculated on a 12-month rolling basis (under the current rules absences are calculated in 12-month periods counting back from the date of the ILR application).
See also Exceptional cases.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by vinny » Tue Mar 27, 2018 9:33 am

konda.manasa wrote:
Tue Mar 27, 2018 8:11 am
vinny wrote:
Mon Jan 08, 2018 10:32 am
changes
Please click on the above link for more information on dependants.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by narsing_ch » Mon Apr 02, 2018 5:13 pm

Hello,

I have a query please and apologies if this has been answered above(was unable to find any)

My wife is on ILR Dependent Visa on me currently and her visa expires in October 2020 when she will be eligible for ILR herself.

I have few queries please on the below statement
"No more than 180 days’ absences are allowed in a consecutive 12 month period."

1)My wife has left UK on 20th February 2018. Does this mean that she need to return back no later than 180 days?
What if she returns 20th July 2018 which would accumulate about 150 days and leave UK for another leave, does this mean she cannot take leave of more than 30 days?

2) Also how does consecutive 12 months period work?
In above example where she has taken her 1st leave on 20th Feb 2018 on bulk holidays, when does the next 12 month period start, would this be 20th Feb 2019?

3) 180 rule, does this apply to ILR Dependent visas as well?

4) She is on leave because of Maternity leave and planning to overstay due to medical issues for mother and baby, would this be acceptable for overstaying for more than 180 days?

Best
Narsing

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by cyclina1 » Mon Apr 02, 2018 9:48 pm

marcnath wrote:
Mon Jan 08, 2018 1:00 pm
Yes, subtle but not minor for someone effected.

Previously, if you had more than 6 months in a 12 month period, you can plan when to apply for ILR to ensure that the period gets split over two years. Now you can't, you will have to wait longer before you apply.
Wait? If you are under Tier 2, the maximum is 6 years (except you earn huge salary, which has no time limit). So if you have two over 180 days leave in any two 12-months periods, you screwed....

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by cyclina1 » Mon Apr 02, 2018 9:56 pm

narsing_ch wrote:
Mon Apr 02, 2018 5:13 pm
Hello,

I have a query please and apologies if this has been answered above(was unable to find any)

My wife is on ILR Dependent Visa on me currently and her visa expires in October 2020 when she will be eligible for ILR herself.

I have few queries please on the below statement
"No more than 180 days’ absences are allowed in a consecutive 12 month period."

1)My wife has left UK on 20th February 2018. Does this mean that she need to return back no later than 180 days?
What if she returns 20th July 2018 which would accumulate about 150 days and leave UK for another leave, does this mean she cannot take leave of more than 30 days?

2) Also how does consecutive 12 months period work?
In above example where she has taken her 1st leave on 20th Feb 2018 on bulk holidays, when does the next 12 month period start, would this be 20th Feb 2019?

3) 180 rule, does this apply to ILR Dependent visas as well?

4) She is on leave because of Maternity leave and planning to overstay due to medical issues for mother and baby, would this be acceptable for overstaying for more than 180 days?

Best
Narsing

1)My wife has left UK on 20th February 2018. Does this mean that she need to return back no later than 180 days?
What if she returns 20th July 2018 which would accumulate about 150 days and leave UK for another leave, does this mean she cannot take leave of more than 30 days?

Yes. Before 20 feb, 2019 she cannot take more than 30days or it will excess180 days.

2) Also how does consecutive 12 months period work?
In above example where she has taken her 1st leave on 20th Feb 2018 on bulk holidays, when does the next 12 month period start, would this be 20th Feb 2019?

Yes. but actually if she also took leave more than 30days between 20 July 2017 and 20 Feb 2018, also broken 180 days rule.



3) 180 rule, does this apply to ILR Dependent visas as well?

Yes. Everyone.

4) She is on leave because of Maternity leave and planning to overstay due to medical issues for mother and baby, would this be acceptable for overstaying for more than 180 days?

Yes. But you need documents from doctor to prove this. Cannot be just said by your mouth. And i fact in most cases except this is life-threaten or life-changing incidents, HO won't accept.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by cyclina1 » Mon Apr 02, 2018 10:45 pm

actually days before 2018 would not be counted by the new rules. So you just need to plan ahead.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by kumar84 » Mon Apr 02, 2018 11:28 pm

@Narsing,

When was the dependent issued visa?

If the dependent visa was issued before 11 jan 2018 and no further extension is required, 180 days rule does apply for dependent.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Vinsanchez0115 » Mon Apr 09, 2018 1:30 pm

Hi,

Just to have a clarification on the said changes. My wife who is tier 2 general visa,currently on her maternity leave and we decided to come home to the philippines to spend New year. We left December 28, 2017 and we agreed that she can stay for another 5mos which is till May 25, 2018. Is there something to be worry about if we left 2017 and comes back 2018 which is new calendar years? Or shall I rebooked them soon just to be safe? Thank you very much.

Regards
Arvin

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by CR001 » Mon Apr 09, 2018 1:47 pm

Vinsanchez0115 wrote:
Mon Apr 09, 2018 1:30 pm
Hi,

Just to have a clarification on the said changes. My wife who is tier 2 general visa,currently on her maternity leave and we decided to come home to the philippines to spend New year. We left December 28, 2017 and we agreed that she can stay for another 5mos which is till May 25, 2018. Is there something to be worry about if we left 2017 and comes back 2018 which is new calendar years? Or shall I rebooked them soon just to be safe? Thank you very much.

Regards
Arvin
If your wife is on a dependent visa and it was issued BEFORE 11th January 2018, then she is NOT subject to the 180 days absence. It has nothing to do with 'calendar years' though.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by kumar84 » Mon Apr 09, 2018 8:45 pm

+ additionally it is advisable to keep phone call records as ‘Proof of Cohabitation’ when applying for ILR.

I am unsure if joint/individual bank statements
during this absence period can be treated as ‘Proof of Cohabitation’. Senoir members will be able to advice on this.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Vinsanchez0115 » Sun Apr 15, 2018 9:35 am

Hi,

What if she's the main applicant under tier 2 general migrant visa? Does this new changes will affect her beikg out of the country for 5 mos with valid maternity leave?

Regards,
Arvin

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by CR001 » Sun Apr 15, 2018 9:41 am

Vinsanchez0115 wrote:
Sun Apr 15, 2018 9:35 am
Hi,

What if she's the main applicant under tier 2 general migrant visa? Does this new changes will affect her beikg out of the country for 5 mos with valid maternity leave?

Regards,
Arvin
This topic is specifically for PBS dependent changes. Kindly post your questions in your own topic regarding main tier 2 visa holder as there were also some rule changes.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Tamilarasan » Sun Jun 17, 2018 10:41 pm

Hi,

Like many others I would like to get some clarification related to the new 180 days rule mainly for Dependants.

My current status:
Currently I am a TIER 2 General Visa holder, I have my ILR appointment booked on 27th June 2018.

My dependents status:
My wife got her TIER 2 dependant visa on May 2013, her extension on May 2016 and it is valid until 24 May 2019. My son born on 30 July 2017, he was born in UK and he got TIER 2 dependant visa in Dec 2017 and valid until 24 May 2019.

Both my wife and son were in India for the following dates,

1. From 30th Dec 2017 to 1st April 2018
2. From 13th April 2018 and planning to return to UK on 12th August 2018

I am planning to apply for their ILR sometime during Nov 2018 or Feb 2019. Based on the above dates both my wife and son will be exceeding the 180 days rule, in this situation I would to clarify the below,
1. Is the new 180 days absence rule applicable for my dependants ?
2. If the new 180 days rule is applicable, then how should I calculate the absence days.
3. Is my son eligible for ILR ?

Many thanks in advance for your help.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by vinny » Sun Jun 17, 2018 10:57 pm

Someone realised that restrictive retrospective changes were unreasonable.
Statement of changes to the Immigration Rules: HC1154, 15 June 2018 wrote:6A.2 For paragraph 245AAA(a)(i), substitute:
“(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose; and
(2) for any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, the applicant must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.”.
Explanatory memorandum HC1154, 15 June 2018 wrote:Changes to indefinite leave to remain in work categories
7.18. Applicants for indefinite leave to remain must complete a continuous period (usually 5 years) with valid leave and absences from the UK of no more than 180 days in any 12-month period during that time. The following changes are being made to these provisions:
 A transitional arrangement is being applied, to ensure that the new absences calculation rule, effective from 11 January 2018 (in HC 309), does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to that date.
 Provisions setting out when an applicant’s continuity of leave is not broken are currently more generous for in-country applications than for entry clearance applications (where applicants have otherwise had continuous stay in the UK but happen to be overseas when their previous leave expires). Changes are being made to bring the entry clearance provisions into line with the (more generous) in-country provisions.
Effective 6 July 2018.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Tamilarasan » Mon Jun 18, 2018 12:48 am

Hi Vinny,

Thanks for your quick reply,

As my wife (May 2016) and son(Dec 2017) are granted leave before 11 Jan 2018, and based on the below

(2) for any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, the applicant must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.”.

am I correct to understand that they will not be impacted by the new 180 days rule ? and as per the rule before 11 Jan 2018 the dependants doesn't have 180 days rule applicable for them. Is that correct ?

Many thanks for your help again.

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by vinny » Mon Jun 18, 2018 1:56 am

PBS Dependants' absences are not impacted during leave granted prior to 11 Jan 2108.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Hannah Chen » Thu Aug 09, 2018 11:36 pm

Does this apply to 10 years long residency?

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by CR001 » Fri Aug 10, 2018 5:55 am

Hannah Chen wrote:
Thu Aug 09, 2018 11:36 pm
Does this apply to 10 years long residency?
No it does not. Please can you keep your questions in your own topic you already have.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by vir_g » Fri Aug 10, 2018 1:17 pm

vinny wrote:
Sun Jun 17, 2018 10:57 pm
Someone realised that restrictive retrospective changes were unreasonable.
Statement of changes to the Immigration Rules: HC1154, 15 June 2018 wrote:6A.2 For paragraph 245AAA(a)(i), substitute:
“(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose; and
(2) for any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, the applicant must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.”.
Explanatory memorandum HC1154, 15 June 2018 wrote:Changes to indefinite leave to remain in work categories
7.18. Applicants for indefinite leave to remain must complete a continuous period (usually 5 years) with valid leave and absences from the UK of no more than 180 days in any 12-month period during that time. The following changes are being made to these provisions:
 A transitional arrangement is being applied, to ensure that the new absences calculation rule, effective from 11 January 2018 (in HC 309), does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to that date.
 Provisions setting out when an applicant’s continuity of leave is not broken are currently more generous for in-country applications than for entry clearance applications (where applicants have otherwise had continuous stay in the UK but happen to be overseas when their previous leave expires). Changes are being made to bring the entry clearance provisions into line with the (more generous) in-country provisions.
Effective 6 July 2018.

Hi Vinny,

Does this mean that leave granted before 11 Jan 2018 will have old rule applicable for absences which calculates absences in consecutive fixed 12 months period starting from date of application to 5 years back ?

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by ravil14 » Fri Aug 10, 2018 5:22 pm

Hi I need your help guys.
I have finished my studies in oct 2010 and i went to india and applied my psw visa from india and came back within 180 days period. So would I be still eligible for 10years window for ILR?

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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by CR001 » Fri Aug 10, 2018 5:34 pm

ravil14 wrote:
Fri Aug 10, 2018 5:22 pm
Hi I need your help guys.
I have finished my studies in oct 2010 and i went to india and applied my psw visa from india and came back within 180 days period. So would I be still eligible for 10years window for ILR?
This DOES NOT apply to ILR based on long residence, which has completely different rules. The topic heading clearly states it is for PBS route ILR applications

Please start your own topic or continue in one you already have!!!
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