Home Office reverses policy on changes to permanent residence calculation rules

5 Jul 18

UNITED KINGDOM

IMPACT – MEDIUM

What is the change? The Home Office has reversed a rule that took effect in January on calculating acceptable absences during the five-year qualifying period for permanent residence.

What does the change mean? The old calculation rule that is less strict will be reinstated for immigrants who entered the U.K. before Jan. 11 and will remain in effect for the next five years. Additional immigration rule changes due to come into effect on Friday can be found here.

  • Implementation time frame: July 6, 2018.  
  • Visas/permits affected: Indefinite Leave to Remain (ILR) applicants.
  • Who is affected: All U.K. employers and Tier 2 (General) skilled workers.
  • Business impact: The reinstatement of the prior rule makes it easier to calculate absences and avoid disqualifying absences due to business travel outside the U.K. during the five-year qualifying period.
  • Next steps: Companies are encouraged to make sure that Tier 2 (General) workers who intend to settle in the U.K. are aware of the residency requirements.

Background: Tier 2 (General) skilled worker migrants who have lived and worked in the U.K. for five continuous years are eligible to apply for indefinite leave to remain in the U.K. on a permanent basis. The Home Office requires not only a five-year visa, but proof that the migrant has been physically resident in the U.K. throughout the period as evidenced through a schedule of absences. Applicants are disqualified if they have been absent from the U.K. for more than 180 days during a 12-month period, but the immigration rules govern how the absences are calculated. Before Jan. 11, the calculation method looked at whether the applicant was outside the U.K. for more than 180 days during any of the separate five 12-month blocks preceding the application date. It was therefore straightforward to analyse absences and calculate the optimum time to submit the application to ensure that business travel did not undermine the 180-day rule. Since Jan. 11, a stricter rule was applied that counted 180-day absences in any 12-month period during the previous five years. Following lobbying from stakeholders, the pre-Jan. 11 rule has been reinstated for all migrants who entered the U.K. before that date, and that calculation method will be in effect for the next five years.

BAL Analysis: Employers and migrants applying for Indefinite Leave to Remain (permanent residence) should be reassured by the policy reversal that applications can be submitted on the same basis as originally anticipated. Any ILR applications made now and in the next five years will be processed under the old rules, which allow for some tactical timing of the filing. New arrivals to the U.K. should be aware that their ILR applications will ultimately need to meet the new rules of no aggregate absence of 180 days in any 12-month period within the five years. A schedule of absences from the U.K. should therefore be maintained continually, and applicants should seek advice from BAL if frequent business travel or extended single absences (personal or business) will take them over or close to the 180-day threshold.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@balglobal.com.

Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.