Permitted Absences Under Appendix Continuous Residence
In This Article
- Introduction
- What are ‘Permitted Absences’?
- How to Prove a Permitted Absence
- What Happens if an Application Is Refused Because an Absence Is Not Accepted to Be a Permitted Absence?
- Contact Our Immigration Barristers
- Frequently Asked Questions
- Glossary
- Additional Resources
1. Introduction
Our earlier post, Indefinite Leave to Remain (ILR): Which UK Visas Lead to Settlement?, explains which visas provide routes to indefinite leave to remain (ILR) in the UK. As explained in that post, many routes to ILR require showing a period of continuous residence in the UK – the length of the period of continuous residence needed varies depending on the route. Further, what counts as ‘continuous residence’ depends on the type of visa that you are on.
This post discusses the guidance on permitted absences under Appendix Continuous Residence. The information in this post applies to applications made under the following routes (former names of the routes are given in brackets):
- 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.
For the above visas, the rules on what counts as ‘continuous residence’ are set out in Appendix Continuous Residence of the Immigration Rules.
2. What are Permitted Absences?
The general rule under Appendix Continuous Residence is that an applicant must not have been outside the UK for more than 180 days in any rolling 12 month period. For applicants applying for ILR on the basis of ten years’ long residence in the UK, the applicable rules changed on 11 April 2024 and transitional provisions are in place.
Where part of the ten year period relied on is before 11 April 2024 (even where the application is made after this date), total absences for the part of the period before 11 April 2024 must not add up to more than 548 days, and any single absence beginning before 11 April 2024 must not be more than 184 days. For parts of ten year periods running after 11 April 2024, the rule that the Applicant must not have been outside the UK for more than 180 days in any rolling 12 month period applies. See our earlier post, New Guidance Clarifies Long Residence ILR 548-Day Absence Rule, on the changes.
However, there are some exceptions to the rule that applicants must not have been outside of the UK for more than 180 days in any 12 month period. These are listed at paragraph CR 2.3 of Appendix Continuous Residence; absences where one of the exceptions applies are described in Home Office Guidance as ‘permitted absences’. If an absence was for one of the listed reasons, it will not be counted when calculating whether an applicant has been outside of the UK for more than 180 days in any 12 month period. In an application made under Appendix Long Residence, absences for one of these reasons will also not be counted when calculating whether an applicant’s absences prior to 11 April 2024 total more than 548 days, or whether any single absence starting before 11 April 2024 was more than 184 days. If an applicant is applying as a dependent partner or child, and the person on whom they are dependent has a permitted absence, that absence will also not count when calculating the dependant’s continuous residence period.
Paragraph CR 2.3 reads as follows:
CR 2.3. When calculating the period of absence in CR 2.1., CR 2.2. or CR 2.2A., any period spent outside the UK will not count towards the period of absence where the absence was for any of the following reasons:
(a) 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; or
(b) travel disruption due to natural disaster, military conflict or pandemic; or
(c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; or
(d) research activity undertaken by a Skilled Worker which was approved by their sponsor and where the applicant was sponsored for a job in one of the following SOC 2020 occupation codes:
- • 2111 Chemical scientists
- • 2112 Biological scientists
- • 2113 Biochemists and biomedical scientists
- • 2114 Physical scientists
- • 2115 Social and humanities scientists
- • 2119 Natural and social science professionals not elsewhere classified
- • 2161 Research and development (R&D) managers
- • 2162 Other researchers, unspecified discipline
- • 2311 Higher education teaching professionals; or
(e) research activity undertaken by a person on the Global Talent route who was endorsed by:
- (i) The Royal Society; or
- (ii) The British Academy; or
- (iii) The Royal Academy of Engineering; or
- (iv) UKRI; or
(f) research activity undertaken by a person on the Global Talent route who qualified on the basis of a prize listed in table 6 of Appendix Global Talent: Prestigious Prizes; or
(g) 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; or
(h) where the applicant’s partner is absent from the UK on Crown service as:
- (i) a regular member of HM Armed Forces (the Royal Navy, the Royal Marines, the Army (including the Brigade of Gurkhas) and the Royal Air Force); or
- (ii) an employee of the UK Government, a Northern Ireland department, the Scottish Administration or the Welsh Government; or
- (iii) a permanent member of the British Council, and the applicant accompanies them overseas.
The Home Office Guidance is clear that applicants arguing that an absence was for a permitted reason are expected to provide evidence of this. There is no list of specific evidence that is required, but the Guidance contains information on what caseworkers might expect to see. This is summarised below. If you need to argue that one or more of your UK absences was for a permitted reason, it is a good idea to seek legal advice on the evidence to provide with your application.
3. How to Prove a Permitted Absence
The Applicant Was Assisting With a National or International Humanitarian or Environmental Crisis Overseas
An absence will be a permitted absence if an applicant was assisting with a national or international humanitarian or environmental crisis overseas. The Guidance suggests applicants should provide documents from an official source that can be independently verified by the Home Office, showing the duration and purpose of any assistance.
If you are on a sponsored route, your sponsor must have agreed to the absence for this purpose. For example, if you are a skilled worker, your employer must have agreed to the absence. Home Office Guidance suggests that sponsored applicants should provide a letter from their sponsor agreeing to the absence for that purpose and confirming the start and end dates of the absence for that purpose. You should also provide evidence such as payslips or bank statements covering the period of absence, showing that you were still employed during that time.
The Applicant Was Assisting With a National or International Humanitarian or Environmental Crisis Overseas
If your travel was disrupted due to natural disaster, military conflict or pandemic, this may be considered a permitted absence. Home Office caseworkers are instructed to confirm, using publicly available and credible sources, that the relevant event occurred, for example by using the Foreign and Commonwealth Office travel advice pages. You will need to provide evidence of how your planned travel was affected by the events.
Compelling and Compassionate Personal Circumstances, Such as the Life-Threatening Illness of the Applicant, or Life-Threatening Illness or Death of a Close Family Member
Applicants may argue that a period of absence should not count towards the 180-day limit (or, for applications under Appendix Long residence, the 184-day and 548-day limits outlined above) if the absence was for compelling and compassionate reasons.
The rules and Guidance give the example of the life-threatening illness of the applicant, or the life-threatening illness or death of a close family member, indicating that a high threshold applies in assessing whether circumstances are compelling and compassionate. The Guidance states that a close family member for these purposes means a parent, stepparent, partner, child, grandparent, brother, sister, uncle, aunt, or grandchild.
For circumstances other than the life-threatening illness of the applicant or their close family member, or the death of a close family member, the Guidance suggests that a circumstance is more likely to be considered to fall within the exception if: the reasons given are credible and well evidenced; the circumstances were out of the applicant’s control; the absence was in response to urgent or unexpected events, and if the applicant was prevented from returning to the UK or experienced a significant delay outside their control preventing them from returning to the UK.
The Applicant is expected to provide evidence of the circumstances. The Guidance suggests providing a letter setting out the details of the circumstances, along with supporting evidence. The following examples of the type of evidence expected are given:
- medical certificates or medical records that show:
- the applicant (or their dependent and/or child dependent) were unable to return to the UK due to factors such as ill health affecting themselves or family members
- urgent need to seek medical care from overseas services
- a medical appointment for the applicant that wasn’t planned before leaving the UK and/or regularly taken overseas
- medical certificates or medical records attesting to life-threatening illness of a close family member
- evidence of the role the applicant has played as a carer to a close family member with a life-threatening or serious illness
- birth or death certificates
Permitted Absences for Research Linked to Work – Skilled Workers
If you have a Skilled Worker visa and you were absent in order to carry out research linked to your work, this will constitute a permitted absence if the absence was approved by your sponsor and you were sponsored for a job in one of the following SOC 2020 occupation codes (as listed at paragraph C.2.3 of Appendix Continuous Residence at the time of writing):
- 2111 Chemical scientists
- 2112 Biological scientists
- 2113 Biochemists and biomedical scientists
- 2114 Physical scientists
- 2115 Social and humanities scientists
- 2119 Natural and social science professionals not elsewhere classified
- 2161 Research and development (R&D) managers
- 2162 Other researchers, unspecified discipline
- 2311 Higher education teaching professionals.
If you do not know your job’s occupation code, you should check your Certificate of Sponsorship.
The Home Office Guidance suggests you should provide a letter from your sponsor agreeing to the absence for this purpose and confirming the start and end dates of the absence. The Guidance also suggests that you should provide payslips or bank statements covering the period of absence to show that you remained employed during the period.
Permitted Absences for Research Linked to Work – Skilled Workers
If you are on a Global Talent visa and were absent for research purposes, this constitutes a permitted absence if your visa was based on endorsement by The Royal Society, The British Academy, The Royal Academy of Engineering, or UKRI. If you qualified for a Global Talent visa because you were awarded a prize listed in table 6 of Appendix Global Talent: Prestigious Prizes, an absence for research purposes will also constitute a permitted absence. The Home Office Guidance suggests that if you qualified for a Global Talent visa based on one of these options and state that an absence was for research purposes, this will be accepted without requiring further documentation.
Applicants Under Appendix Settlement Family Life
An application can be made under Appendix Settlement Family Life by those who have permission to stay as a partner or parent under Appendix FM and are on the ten year route to settlement. Appendix Continuous Residence contains a fairly broad exception for applicants on this route. Absences are permitted and will not count towards the relevant to the 180-day (or 184-day and 548-day) limits if they were 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’.
Absence must be for work, study, or supporting family overseas
Applicants should provide evidence to show that the relevant absence was for work, study or supporting family overseas. If the absence was for work, the Home Office Guidance suggests applicants should provide a letter from their employer giving the reasons for the absence from the UK and the nature of the work being done outside the UK, and evidence such as payslips or bank statements covering the period of absence to show that the applicant was employed at the relevant time. For studies, the Guidance suggests that applicants should provide a letter confirming enrolment for studies abroad. If the absence was to support family overseas, the Guidance suggests providing evidence of the reason the family member needed support (e.g. evidence they were ill, elderly or needed childcare) and evidence of the role the applicant played (e.g. as a carer).
The family must have maintained a family life in the UK and the UK must have remained their place of permanent residence
There is no specific evidence required to meet the requirement that family life was maintained in the UK and that the UK remained the applicant’s place of permanent residence.
If you left the UK but other family members (e.g. a partner and dependent children) remained in the UK, evidence of maintaining family life in the UK might include evidence of return visits to see your family in the UK. Evidence that the UK remained your place of permanent residence could include evidence of retention of the family home in the UK, demonstrated through utility bills in yours or your partner’s name, and a tenancy agreement or mortgage agreement for your property in the UK.
If your whole family unit travelled abroad for the relevant period, the Guidance suggests that the Home Office will expect to see evidence that the absence was temporary. This might include evidence that the absence was a sabbatical, or that children were still enrolled in school, or evidence of property in the UK. The Guidance also suggests that, if the whole family travels abroad and is out of the UK for more than half the period of an applicant’s leave (e.g. more than 15 months out of a 30 month period), this may indicate that the UK did not remain the Applicant’s place of permanent residence.
Crown Service Dependants
Where you have accompanied your partner on Crown service, this is a permitted absence. Caseworkers may request confirmation from someone with sufficient authority within your partner’s department to confirm your partner’s position and the dates of their Crown Service.
4. What Happens if an Application Is Refused Because an Absence Is Not Accepted to Be a Permitted Absence?
If your application is refused on the basis that the Home Office do not accept that an absence was a permitted absence, depending on the immigration route you are on, you may either be able to appeal the decision, or request an administrative review. If neither are available, you may be able to bring a judicial review of the decision.
In an appeal, an independent judge would decide your case. You will only have a right of appeal if your claim is considered to be a human rights claim – this depends on the basis of the leave you currently hold and the route you were applying on. You should check whether your decision letter says you have a right of appeal. In an administrative review, the Home Office would consider whether a caseworking error was made in the original decision; additional evidence can only be considered in an administrative review in very limited circumstances, so it is important to ensure that all the relevant evidence is provided with your initial application. In a judicial review claim, a judge considers whether the Home Office acted lawfully in its decision but will not decide the merits of your case themselves. If you succeed in a judicial review claim, the Home Office would be required to remake its decision. For advice on which options may be available to you, on the merits of challenging a refusal of an application for indefinite leave to remain, or regarding making a new application, contact us using the details below.
5. Contact Our Immigration Barristers
The rules on absences when applying for indefinite leave to remain are complicated. Contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
