10 Year ILR Long Residence: Absences from the UK
Potential applicants for indefinite leave to remain under the long residence provisions are likely, as they approach the 10 year qualification period, to be charting the days they have been absent from the UK in order to ensure that they meet the residence requirements. In this post we look at the continuous residence requirement for a 10 year ILR application and the recent decision of the Upper Tribunal in Chang (paragraph 276A(a)(v); 18 months?) [2021] UKUT 65 (IAC).
Requirement for 10 year long residence ILR
The requirement for 10 year long residence applications is set out in paragraph 276A of the Immigration Rules, which states:-
276A. For the purposes of paragraphs 276B to 276D and 276ADE (1).
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
…
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
Disputes have arisen in relation to precisely how many days are contained in a ‘month’ or in 18 months under the above Rule, and this is not defined in the Immigration Rules.
Until now it has been prudent practice to follow the Home Office guidance, which computes that 18 months is equivalent to 540 days of absence, which by simple maths equates to a month being 30 days; it further states that:-
“For the purpose of calculating time spent outside the UK for the long residence rules, a month constitutes 30 calendar days.”
Note that this is not the case for applications for indefinite leave to remain in other immigration categories, where the exact number of permitted days of absence are set out in the applicable Immigration Rules Appendix Continuous Residence, see also the Home Office guidance here and here.
In a recent case heard by the Upper Tribunal, Chang (paragraph 276A(a)(v); 18 months?) [2021] UKUT 65 (IAC), Upper Tribunal Judge Rintoul found as a matter of fact that the Immigration Rules did not define a month as having 30 days, and, because the length of a month could vary from 28 to 31 days, a period of 18 months could vary in length from 522 days to 558 days, depending on which months the applicant had been absent from the UK. He found that, applying common sense to the issue, that 18 months was a year and a half, and as such, the correct number of days in an 18 month period would be 548 days on average.
It is a matter of settled law (R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33) that the Home Office cannot impose formal requirements by way of guidance; they must be set out in the Rules. Further Alvi instructs that where such ambiguity occurs, the matter should be resolved in the Applicant’s favour. Accordingly, UTJ Rintoul found in Cheng (paragraph 32) that “Applying Alvi to this case, I consider that what the guidance is seeking to do when defining 18 months as 540 days is the creation of a rule, and thus is not permissible.” The Applicant had been absent for 543 days, and applying his mathematical common-sense calculations above, UTJ Rintoul found that the Applicant had been absent from the UK for less than 18 months, and allowed her appeal.
Therefore unless and until the Home Office alters the Immigration Rules to state that the continuous residence requirements are not met if absent for more than 540 days, Applicants who have been absent for up to 548 days should be able to make successful applications relying on the findings in Cheng.
Settled Status?
The same imprecision looms for calculating absences in applications for settled status under Appendix EU, which defines continuous residence as:-
“a period of residence in the UK and Islands …
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period, except for:
(aa) a single period of absence which did not exceed 12 months and was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting);…” (emphasis in bold added)
The number of days in a month is not defined; therefore does this mean there should be no more than 180 days of absence in a 6 month period and/or 360 days in a 12 month period if the 30 day calculation is used; or does the 6 month period mean half a year (182 days) and the 12 month period a full year (365/366 days)? The judgment in Cheng may therefore have wider implications for applications for settled status where the number of days of absence nears the prohibited limits.
Contact our Immigration Barristers
Calculating absences and preparing the evidence for a 10 year long residence application can be complex; for expert advice and assistance regarding any aspect of UK immigration law, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
