Continuous Residence: Calculating Absences for ILR Applications
In This Article
1. Continuous Residence for ILR Applications
2. ILR Continuous Residence: Key Rules and Eligibility Criteria
3. How to Track and Calculate Your UK Absences for ILR
4. ILR Absence Rules: How to Count Your Days Correctly
5. Understanding ILR Absence Rules in Practice
6. Exceeding the 180-Day Absence Limit
7. Contact Our Immigration Barristers
8. Frequently Asked Questions
9. Glossary
1. Continuous Residence for ILR Applications
Many routes to Indefinite Leave to Remain (ILR) in the UK require demonstrating a period of ‘continuous residence’ in the UK. In most cases, this means showing that the applicant has not been outside the UK for more than 180 days in any 12 month period. Following reforms to the Immigration Rules in April 2024, absences for 10 year long residence ILR applications which fall after 11 April 2024 are now calculated in line with absences for ILR across other routes
This article will provide a practical guide to calculating and reviewing your absences to see whether these will pose an issue in an ILR application, and how to deal with them if they do, ensuring that you continue to meet the continuous residence criteria.
Continuous residence is relevant to applications made on the following immigration routes:
- Skilled Worker (Tier 2 General);
- Representative of an Overseas Business (Media Representative or Sole Representative);
- Global Talent (Tier 1 (Exceptional Talent));
- Innovator Founder;
- Appendix T2 Minister of Religion (Tier 2 Minister of Religion);
- Appendix International Sportsperson;
- Appendix UK Ancestry;
- Scale-up;
- Appendix Settlement Family Life;
- Appendix Private Life (settlement only, apart from where the applicant is applying to settle as a child born in the UK);
- Hong Kong BN(O) Status Holder Visa;
- Appendix HM Armed Forces (only settlement as a Partner or Child); and
- Long Residence ILR under Appendix Long Residence.
Absence requirements are also different for British Citizenship. Please see our previous article, British Citizenship by Naturalisation: Absences from the UK, for further details.
2. ILR Continuous Residence: Key Rules and Eligibility Criteria
This article will discuss the applications for ILR on the five year route. There are various other routes for Indefinite Leave to Remain which take varying lengths of time (generally two, three or ten years). These have differing rules which we will not discuss here. The methodology for counting your absences, however, applies across all categories.
The continuous residence period only applies to the period of eligibility required to qualify for ILR on your route. So, if you previously spent time in the UK on a visa that does not lead to settlement (for example, a student visa), left, then returned on a route that does lead to settlement, you only need to consider your absences from the UK during your 5 years on a settlement route.
The meaning of ‘continuous residence’ and the length of the period of continuous residence required varies depending on the immigration route you are on. For an overview of the different routes, see our article Indefinite Leave to Remain (ILR): Which UK Visas Lead to Settlement?
For most routes, the rules require that a person applying for ILR has not been absent from the UK for more than 180 days in any rolling 12 month period, except where that absence falls under an exception. These are briefly outlined below but for further information about these exceptions and how to evidence them, see our article, Permitted Absences Under Appendix Continuous Residence.
The Home Office must assess the period of continuous residence from whichever of the following dates is most beneficial to the applicant: the date of application; any date up to 28 days after the date of application; or the date of decision. For a person applying for settlement on the UK Ancestry route only, there is also the option of the date of their last grant of permission.
3. How to Track and Calculate Your UK Absences for ILR
Firstly, you will need the dates of all of your absences from the UK in the last two to ten years (depending on the route you are on and when you become eligible for ILR) years. For some people, this will be possible to reconstruct through the stamps in their passport. However, for many others, especially those whose passports allow them to pass through passport eGates, stamps will not be enough to reconstruct your travel to and from the UK.
One option is to search your email for flight, ferry and/or Eurostar bookings. Another would be to make a Subject Access Request (SAR) from the Home Office. Our previous article A Guide to Immigration Subject Access Requests, explains what this is and you can find a step-by-step guide to making a Home Office SAR at the3million.org.uk. You can ask the Home Office for a record of all the dates that you have entered and exited the UK since your arrival in the UK or since any other date. You might wish to request only absences in the last five or 10 years, depending on the route you are applying on and how long you have been in the UK, to reduce the volume of documentation you receive.
Once you have all the dates, you will need to put them all together in a spreadsheet or something similar. You can put together your own, or you might wish to use the ‘absence calculator’ template from the3million.org.uk. However, please note that this template is designed for use by people on the EU Settlement Scheme, and the single long absence exception highlighted does not apply to individuals on other immigration routes.
4. ILR Absence Rules: How to Count Your Days Correctly
There are some rules to watch out for when calculating absences.
Firstly, keep in mind that the days you entered and left the country do not count towards your total absences. So, if you leave the UK at 5am on Monday and return at 10pm on Tuesday, this is not counted as an absence for immigration purposes. If you leave the UK at 5am on Monday and return at 10pm on Wednesday, this counts as a single day of absence for immigration purposes.
Secondly, you need to view your absences across a continuous rolling 12-month period, as this is central to maintaining continuous residence. So, if you were outside the UK for 100 days from July to November of 2022, and then absent for another 100 from April to July 2023, this counts as 200 days of absences in 12 months, even though they took place across two different calendar years.
Periods spent outside the UK which count as absences includes any period:
- when your permission to remain/enter remained valid;
- while an entry clearance application or permission to stay application is under consideration;
- before you entered the UK, once entry clearance had been granted.
There are a number of exceptions to the above rules, particularly where an absence does not break the continuous residence. Where absence was for one of the following reasons, the absence will be permitted and therefore not count towards the 180-day total:
- the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing, if on a sponsored route, their sponsor agreed to the absence for that purpose;
- travel disruption due to natural disaster, military conflict or pandemic;
- compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or the life-threatening illness or death of a close family member;
- approved research activity undertaken by a Skilled Worker in one of a set number of scientific and academic fields;
- research activity undertaken by a person on the Global Talent route who attained endorsement from The Royal Society, The British Academy, The Royal Academy of Engineering, or UKRI;
- research activity undertaken by a person on the Global Talent route who qualified on the basis of a named ‘prestigious prize’;
- for an applicant under Appendix Settlement Family Life, absences for work, study or supporting family overseas, so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence;
- where the applicant is accompanying their partner who is absent from the UK on Crown service (membership of HM Armed Forces; government employment; British Council employment) and the applicant accompanies them overseas.
If you are applying as a partner or a child (“as a dependent”), and you were absent from the UK with the person on whom you are a dependent, for a reason that falls into one of the exceptions, this period will not be counted when calculating your 180 days of absences.
5. Understanding ILR Absence Rules in Practice
1. Joseph is in the UK as the dependent of his husband, an academic who holds a Skilled Worker visa sponsored by a UK university. His husband spends 3 months per year carrying out research in his field in Spain. Joseph accompanies his husband on these trips.
When Joseph applies for ILR, he will not need to count the periods in Spain among his absences from the UK, as he was accompanying his husband under a permitted exception, although he will need to provide evidence to prove this.
2. Sonia travels to her home country to visit family. She intends this to be a one month trip, and has a return ticket booked. Two weeks after she arrives, she is hit by a car and hospitalised. She is declared fit to travel after six weeks and returns to the UK after a two month absence.
The first month of Sonia’s absence will likely be counted as a routine absence since she had always intended to be away for a month. However, the second month’s absence should be discounted due to compelling and compassionate personal circumstances. However, she will need to provide significant evidence of her absence, and also show that she returned to the UK at the earliest possible opportunity.
3. Siddarth was granted UK entry clearance on 01 September 2021. He entered the UK on 15 October 2021. In 2022, he travelled abroad repeatedly for work and also took a number of holidays. He was absent from the UK for a total of 145 days in 2022.
Siddarth is still over the 180 day rolling limit for ILR, because the gap between when he was granted entry clearance and when he entered the UK counts as an absence of 45 days, and combined with his 2022 absences this puts him at 185 days.
6. Exceeding the 180-Day Absence Limit
If you calculate that you are over the 180 day threshold and your absences do not fall under any of the exceptions, do not panic.
The 180 day threshold only applies to your eligibility for ILR and in most cases will not affect your current leave to remain in the UK (although you should check the rules for your specific category). So, if you cannot meet the continuous residence requirement now, you may be able to extend your current visa or switch into another category, and reapply for ILR when you have a suitable period of continuous residence in the future.
However, if you are unsure as to how your absences should be approached, or if you are wondering whether you might be able to ask the Home Office to exercise discretion due to exceptional circumstances, it would be best to seek immigration advice.
7. Contact Our Immigration Barristers
The rules on absences when applying for indefinite leave to remain are complex and our experts are here to help. Ensuring that you maintain continuous residence throughout your qualifying period is crucial for a successful application. Contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
