Tier 1 Investor Visa ILR: Residence and Absence Requirement
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 Tier 1 Investor ILR residence and absence requirement. This article will explain what the Tier 1 Investor ILR residence and absence requirement actually means for Investors and how individuals and their family members can meet it.
Tier 1 Investor ILR residence and absence requirement: Main Tier 1 Investor visa holder
When an investor makes an initial application to enter the UK as a Tier 1 Investor, there is no requirement 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 Tier 1 Investor ILR residence and absence 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 Tier 1 Investor ILR residence and absence requirement, they can choose 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 their stay, providing that they continue to meet the requirements of the Tier 1 Investor visa category, and that the category remains open.
There are three routes to settlement in the UK Investor visa category, taking either two, three, or five years, depending on the level of investment maintained throughout the stay. In each case the Tier 1 Investor ILR residence and absence requirement is the same. The main applicant must not have been absent from the UK for more than 180 days in any 12 month period. This means that in order to settle in the UK as a Tier 1 Investor, an applicant must have spent a little over half their time in the UK.
How to calculate the 180 days Tier 1 Investor ILR residence and absence requirement
For any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, an applicant applying for ILR as a Tier 1 Investor must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.
For any absences from the UK during periods of leave granted under the Rules in place since 11 January 2018, the Home Office will consider a rolling 12 month period.
In either case, days which are spent travelling to or from the UK do not count for the purpose of the Tier 1 Investor ILR residence and absence requirement.
What if I have been outside the UK for more than 180 days?
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 as a Tier 1 Investor, 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.
Tier 1 Investor ILR residence and absence requirement: Dependants of Tier 1 Investors
If you have dependants, they may also be subject to a residence and absence 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.
Since 11 January 2018, dependant spouses/partners of points-based system migrants have had to satisfy a residence and absence requirement. Dependant spouses/partners must not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 will not count towards the 180 days.
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. Also, with a few exceptions, both of an applicant’s parents must either be lawfully settled in the UK, or being granted indefinite leave to remain at the same time as the child.
Contact our Immigration Barristers & Lawyers
For advice and assistance in relation to the Tier 1 Investor ILR residence and absence requirement, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.