Residency and Absence Requirements for Tier 1 Investors
For many individuals who are looking to move themselves and their families to the UK using the Tier 1 Investor category, one of the biggest impediments is the perceived difficulty with satisfying the residence requirement. This article will explain what the residence requirement actually means for investors and how individuals and their family members can meet it.
Main Investor Applicant
Contrary to what some people think, there is no requirement when an investor makes an initial application to state any intention to actually live in the UK for any set amount of time. Equally, when applying to extend their stay, Tier 1 Investor visa holders do not need to show that they have spent any particular amount of time in the UK, or that in the future they intend to spend a particular amount of time in the UK.
The residence requirement only becomes important if a Tier 1 Investor decides to apply for settlement in the UK. This means that if they do not meet the residence requirement, they can chose to instead apply to continue to extend their stay, rather than settle here. There is no limit on the amount of times that a Tier 1 Investor can extend your stay, providing that they continue to meet the requirements of the investor category, and that the category remains open.
There are three routes to settlement in the investor category, taking either two, three, or five years, depending on the level of investment maintained throughout the stay. In each case the residence requirement is the same. The main applicant must have no more than 180 days absences from the UK in any 12 calendar month period. This means that in order to settle, an applicant must have spent a little over half their time in the UK. Days which are spent travelling to or from the UK do not count.
There is no discretion in the Immigration Rules, for those who do not meet this requirement and therefore it is very important, if you do want to be able to apply for settlement, that you ensure that you are able to meet this requirement. The policy guidance does state that Indefinite Leave to Remain may be granted exceptionally where there are excessive absences, providing there are exceptional and compelling reasons for the absences. The guidance goes on to state, however, that economic activity reasons will not be considered exceptional, and that reasons related to maternity, paternity or adoption will be considered within the standard 180 days.
If you have dependants, they may also be subject to a residence requirement. Again, this only applies if they want to apply for settlement, rather than simply extending their stay in the UK.
A dependant spouse or partner now needs to spend a continuous period of five years in the UK. Previously, before 9 July 2012, spouses and partners only needed to spend a period of two years in the UK.
The dependant spouse/partner is also affected by the main applicant's stay. A dependant cannot apply for settlement before the main applicant. They can apply at the same time, or later, but not before. This means that even if the dependant is able to meet the residence requirement, but the main applicant is not, the dependent will not be able to apply for settlement and will need to extend their stay further instead.
If a dependant spends 10 years continuously in the UK, they may be able to apply for settlement under the long residence provisions. In this case, their application will not be affected by the absences of their spouse/partner.
The Immigration Rules applicable to child dependants, including those who enter the PBS dependant category while children but who subsequently turn 18 and who remain dependant, are different from those applicable to partners. There is no requirement to spend any particular time in the UK or that the period is continuous. The child, cannot however, apply for settlement before the main applicant and instead must extend their stay until the main applicant is eligible for settlement.
For advice and assistance with applying for entry clearance, leave to remain or settlement as a Tier 1 Investor or family member, please contact our immigration barristers in London on 0203 617 9173 or by email to email@example.com