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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).


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Big changes to continuous residence rule for ILR applicants under PBS

Post by vinny » 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.

**** UPDATE ****.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any 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

Post by CMOSUK » Mon Jan 08, 2018 11:08 am

vinny wrote:
Mon Jan 08, 2018 10:32 am
Big changes to continuous residence rule for ILR applicants > HC309, in effect on 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;”.
Ohh, subtle but very effective, it means 11 January 2018 onwards, those that have spent more than 180 days outside of the UK in any 12 months of the continuous period will (most likely) be refused (unless for the reasons stated above) and cannot now divide that time spent outside of the UK with the other 12 month blocks.

Hope I've understood it correctly.
These are my 'views' and 'opinions'.
If in doubt always seek professional advice, or at least do a search for the relevant information. :P

If i make any mistakes, You are more than welcome to correct me.


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Re: Big changes to continuous residence rule for ILR applicants

Post by tier21419 » Mon Jan 08, 2018 11:20 am

Does that mean the time will be calculated from 1 Jan XXXX till 31 December XXXX of every year?

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Re: Big changes to continuous residence rule for ILR applicants

Post by CMOSUK » Mon Jan 08, 2018 11:22 am

engrwaseem85 wrote:
Mon Jan 08, 2018 11:20 am
Does that mean the time will be calculated from 1 Jan XXXX till 31 December XXXX of every year?
No, any 12 consecutive months, 5 years preceeding
an application for ILR.

For example,
Entered UK: on 28 August 2010
Eligible for an application on ILR: 28 August 2015 (you may also apply 28 days before)


If clarification could be sought on this please.
Last edited by CMOSUK on Mon Jan 08, 2018 11:34 am, edited 1 time in total.
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Re: Big changes to continuous residence rule for ILR applicants

Post by tier21419 » Mon Jan 08, 2018 11:30 am

So if a Tier 2 visa was granted on 9 Jan 2010, then it will be from 9 January 2010 until 8 January 2011, and same for next four years until the applicant gets ILR?

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Re: Big changes to continuous residence rule for ILR applicants

Post by CMOSUK » Mon Jan 08, 2018 11:39 am

engrwaseem85 wrote:
Mon Jan 08, 2018 11:30 am
So if a Tier 2 visa was granted on 9 Jan 2010, then it will be from 9 January 2010 until 8 January 2011, and same for next four years until the applicant gets ILR?
Yes, if my understanding is correct, I updated the above answer and gave an example as I felt it was incorrect.

Again, don't take it as 💯 % until confirmed on the above analogy.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by marcnath » 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.
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 seasky » Mon Jan 08, 2018 1:18 pm

This is quite a major change, as mentioned above for those who planned and chose their absences.

In the past you could have gone on say a 7-11 month trip abroad (for a job secondment, having a baby) and with careful planning of ILR date allocated part of that trip to different years. Now you cannot.

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

Post by Camel555 » Mon Jan 08, 2018 8:18 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.
Hi Marc, So if I was granted initial Tier 1 on Feb 17 till june 2020 so my continuous period will not be counted backwards from May 2020 till May 17(can apply month before). Does this mean that I have lost my first year of continuous leave if I don't spend 185 days inside UK till Feb 18?

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

Post by Camel555 » Mon Jan 08, 2018 8:48 pm

Camel555 wrote:
Mon Jan 08, 2018 8:18 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.
Hi Marc, So if I was granted initial Tier 1 on Feb 17 till june 2020 so my continuous period will not be counted backwards from May 2020 till May 17(can apply month before). Does this mean that I have lost my first year of continuous leave if I don't spend 185 days inside UK till Feb 18?
Also, pls be kind and read this of proposed changes:
7.21. The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days


Does this mean that this will be implemented from 11th January and would not effect absences before that?

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

Post by marcnath » Mon Jan 08, 2018 9:31 pm

Correct. For dependants, absences before 11 Jan 2018 will be disregarded.
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 marcnath » Mon Jan 08, 2018 9:43 pm

Camel555 wrote:
Mon Jan 08, 2018 8:18 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.
Hi Marc, So if I was granted initial Tier 1 on Feb 17 till june 2020 so my continuous period will not be counted backwards from May 2020 till May 17(can apply month before). Does this mean that I have lost my first year of continuous leave if I don't spend 185 days inside UK till Feb 18?
There are two things:
1. The continuous period, which is still counted 5 years backwards from the qualifying period. That has not changed.
2. The 180 days absence - previously your continuous period was split into 5 distinct periods counting 12 month each backwards your application date. And you could have only 180 days absence in each of those periods. Now, there is no clear definition of period - so UKVI can choose any 12 months and check if you were out of the country for more than 180 days.

So, in you case, if you apply in May 2022, your continuous period will still be between June 2017 and May 2022. The 185 day calculation is more difficult - you should have 185 days in country in ANY 365 day block.
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 chiku1980 » Tue Jan 09, 2018 3:32 pm

Vinny - this paragraph in your post has confused me a bit -

"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."

Are you saying that for dependants it will NOT be retrospective i.e. absences before 11 Jan 2018 will not be taking into account

OR it WILL BE retrospective.

Can you please help clarify. I think i saw another thread mentioned para 319(E) saying these changes will not apply retrospectively. But i would seek your opinion on this please.

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

Post by marcnath » Tue Jan 09, 2018 3:56 pm

chiku1980 wrote:
Tue Jan 09, 2018 3:32 pm
Vinny - this paragraph in your post has confused me a bit -

"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."

Are you saying that for dependants it will NOT be retrospective i.e. absences before 11 Jan 2018 will not be taking into account

OR it WILL BE retrospective.

Can you please help clarify. I think i saw another thread mentioned para 319(E) saying these changes will not apply retrospectively. But i would seek your opinion on this please.
It is not retrospective for dependants. i.e. absences before 11 Jan 2018 will not be taking into account
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 Subhasisbilas » Wed Jan 10, 2018 8:25 pm

Hi,

I am already Settlement (ILR) visa holder in UK(Main applicant).

This query is regarding ILR application for Tier 2 Dependents for wife and son.

Details of their TIER 2 VISA

Entry clearance Tier2 dependant Visa issued - 23 May 2012(Before 9 July 2012)
Date Entered in UK- 16 Sep 2012

Absence Details from UK

21 Apr 2013 to 6 aug 2014--17 Months Which is beyond 180 days per calendar year

but dependents are staying with me in UK continously since 6 Aug 2014 till today with No absence since 6 august 2014.


As a change in the existing current PBS Dependent ILR Application rule which were made on 7th Dec 2017 and 180 days absence in any calendar rule applicable for all applications made after 11 Jan 2018(where 180 days absence rules is extended to Dependents also) .

I am planning to apply for ILR 2 year route for them as entry clearance visa stamped before 9 July 2012.

As per 2 year ILR Route for Dependents rule , Tier 2 Visa Application and Entry clearance Visa Stamped before 9th July 2012 and Continous stay( 2 years of stay) with me in UK since August 6 2014 till date, Can i apply for ILR for Wife and son though there is a gap of more than 180 days in any calendar year in the year apr 2013 to Aug 2014.

Please confirm as i heard a rule got changed just last month as 180 days absence is applicable to dependents for ILR application. As i already booked on last week of Jan 2018 for Premium service slot in next month for dependents before their current leave to remain visa expires in February 2018 under 2 Year ILR Route considering their continous stay in UK since 6 August 2014 till date and Entry Clearance Visa Stamped before 9th July 2012.

Please advise whether should i continue with my ILR Dependent application(Premium Service) for wife and son under ILR 2 year route .

Thanks .

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

Post by marcnath » Wed Jan 10, 2018 9:02 pm

Subhasisbilas wrote:
Wed Jan 10, 2018 8:25 pm
Hi,

I am already Settlement (ILR) visa holder in UK(Main applicant).

This query is regarding ILR application for Tier 2 Dependents for wife and son.

Details of their TIER 2 VISA

Entry clearance Tier2 dependant Visa issued - 23 May 2012(Before 9 July 2012)
Date Entered in UK- 16 Sep 2012

Absence Details from UK

21 Apr 2013 to 6 aug 2014--17 Months Which is beyond 180 days per calendar year

but dependents are staying with me in UK continously since 6 Aug 2014 till today with No absence since 6 august 2014.


As a change in the existing current PBS Dependent ILR Application rule which were made on 7th Dec 2017 and 180 days absence in any calendar rule applicable for all applications made after 11 Jan 2018(where 180 days absence rules is extended to Dependents also) .

I am planning to apply for ILR 2 year route for them as entry clearance visa stamped before 9 July 2012.

As per 2 year ILR Route for Dependents rule , Tier 2 Visa Application and Entry clearance Visa Stamped before 9th July 2012 and Continous stay( 2 years of stay) with me in UK since August 6 2014 till date, Can i apply for ILR for Wife and son though there is a gap of more than 180 days in any calendar year in the year apr 2013 to Aug 2014.

Please confirm as i heard a rule got changed just last month as 180 days absence is applicable to dependents for ILR application. As i already booked on last week of Jan 2018 for Premium service slot in next month for dependents before their current leave to remain visa expires in February 2018 under 2 Year ILR Route considering their continous stay in UK since 6 August 2014 till date and Entry Clearance Visa Stamped before 9th July 2012.

Please advise whether should i continue with my ILR Dependent application(Premium Service) for wife and son under ILR 2 year route .

Thanks .
Yes, you can continue.

The recent changes:
1) do not apply to the 2 year rule
2) even if it did, it would only apply to absences after 11 Jan 2018
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 iubus2005 » Wed Jan 10, 2018 9:09 pm

To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days
Based on language above, it seems that it will only effect if a PBS dependent only if PBS dependent renew their visa (i.e. extend leave to stay) after Jan 11, 2018. i.e. PBS dependents already in UK who will be eligible for ILR without further extensions, should be ok. For new PBS Dependent applicants, and the extensions, this rule will be applicable. I am surprised they did not use the same logic for PBS main dependent!

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

Post by vinny » Wed Jan 10, 2018 10:15 pm

If there are many PBS holders who are adversely affected by these retrospective changes, then I suspect there may be court challenges to the new rules, as they may be contrary to legitimate expectations.
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Re: Big changes to continuous residence rule for ILR applicants under PBS

Post by Delhi_Bhoy » Mon Jan 15, 2018 3:23 pm

Hi Vinny,

Thanks for enlightening us. Seems like we should keep checking this forum everyday to keep abreast with the latest HO development.

My question though is, if an employer has sent me for short secondments/ business visits outside UK to fulfil the purpose of my employment, will they count towards my 180 days absence allowance?

I am on Tier 2 (General) Work Permit.


Thanks & Regards
Kanu

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

Post by vinny » Mon Jan 15, 2018 3:42 pm

I think that the 180 days grace period includes any absences, except for the purpose of assisting with a national or international humanitarian or environmental crisis overseas.
245AAA. wrote:(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;
Moreover,
245AAA. wrote:(c) Except for periods where the applicant had leave as a Tier 1(Investor) Migrant, a Tier 1(Entrepreneur) Migrant, a Tier 1(Exceptional Talent) Migrant or a highly skilled migrant, any absences from the UK during the relevant qualifying period must have been for a purpose that is consistent with the applicant’s basis of stay here, including paid annual leave, or for serious or compelling reasons.
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