Personal Immigration
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New 180 day residence requirement for ILR as a PBS dependent partner

At present, there is no residence requirement for PBS dependants to obtain indefinite leave to remain. They simply have to have been in the category for five years as a family member, and to meet the other requirements of paragraph 319E of the Rules.

In 2016, a 180 day cap was introduced in a previous Statement of Changes (HC667) by way of reference to the definition of ‘continuous residence’ under paragraph 245AAA of the Rules. However, this was not incorporated into the Rules.

The most recent Statement of Changes to the Immigration Rules (HC309) has reintroduced a residence requirement, and this will have a huge impact on future applications for entry clearance, as well as extension applications by those who are already in the UK and need to extend their leave after 11 January 2018.

Paragraph 8.33 of the Statement sets out a new requirement to be inserted into paragraph 319E of the Immigration Rules:

(d) not have 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

(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.

The Explanatory Memorandum sets out:

Changes to indefinite leave to remain in work categories

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. (emphasis added)

The amendment will not impact residence for those who have already extended and can obtain ILR without extending again, and will not change things immediately for those who have already been granted entry clearance until they come to extend.

This will undoubtedly change the approach to Tier 1 applications by Investors or Entrepreneurs whereby previously a partner who did not need to travel more than 180 days per year has been the Main Applicant, and their Dependants would continue to travel extensively, often for business reasons.

This Statement of Change will remove the option for the ‘real’ business person to be a PBS dependant and carry on work overseas yet still be eligible for indefinite leave to remain.

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