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What Does 18 Months Mean for Long Residence ILR?

In the recent decision of Chang (paragraph 276A(a)(v); 18 months?) [2021] UKUT 65 (IAC), the Upper Tribunal determined that “18 months” means 548 days in the context of paragraph 276A(a) (v) of the Immigration Rules. In this post we explore what effect that has on applications for indefinite leave to remain in the UK on the basis of 10 years long residence.

Why is the meaning of ’18 months’ important for long residence ILR?

To be granted indefinite leave to remain in the UK on the grounds of long residence, applicants must have been lawfully resident in the UK for 10 years. This residence must also have been “continuous”. Paragraph 276A(a) of the Immigration Rules sets out various factors which are considered to break the continuous residence. These are when the applicant:

(i) was removed, deported or left the UK having been refused leave to enter or remain here; or

(ii) has left the UK and shown a clear intention not to return; or

(iii) left the UK in circumstances in which they could have not had any reasonable expectation when they left of being lawfully able to return; or

(iv) has been convicted of an offence and sentenced to imprisonment (of any length) or was detained in another institution such as a hospital or institution for young offenders, provided that the sentence was not suspended; or

(v) spent a total of over 18 months absent from the UK during the period in question.

If an applicant breaks their continuous residence due to total absences over 18 months, the Home Office guidance recommends that the application should “normally be refused”, unless there are “compelling or compassionate” reasons that the applicant could not return to the UK.

What counts as an absence?

Any day that an applicant is fully absent from the UK is considered a day’s absence for the purpose of the calculation; days of travelling are not included. Therefore, if an applicant were to leave the UK on a Friday morning, returning before midnight that day, this would not count as an absence. Similarly, if an applicant leaves the UK on Friday morning, returning on Sunday night, this is only 1 day towards their total absences.

The facts of Chang

The Appellant in this case, Mona Chang, had come to the UK as a child on 12 January 2009. She had completed her education in the UK, returning to Hong Kong to visit her family. She applied for indefinite leave to remain on the grounds of long residence and was refused on the basis that she had been absent from the UK for 543 days during the qualifying period of 10 years between her arrival and application. The First Tier Tribunal Judge ruled that since the Home Office guidance stated that one month “constitutes 30 calendar days”, when multiplied by 18 for the maximum limit of months, the overall absences must not be over 540 days.

What counts as 18 months?

Upper Tribunal Judge Rintoul ultimately disagreed, allowing the appeal. 

Judge Rintoul first acknowledged that “month” is not defined in the Immigration Rules, and can only mean a calendar month in accordance with The Interpretation Act 1978, Schedule 1. He then discussed how since the number of days varies depending on the month, counting up days of absences to see whether it reaches a maximum amount of months cannot be easily determined when considering it cumulatively: “[this] is problematic when, as here, the rules are intending to set a maximum period of absence, made up from smaller, shorter periods because the number of days in a period of months will vary depending on when the day on the year on which the count is started” [paragraph 17].

Judge Rintoul underlined the importance of interpreting Immigration Rules using common sense, recognising that “in everyday usage, 18 months means a year and a half, rather than a collection of months selected at random. Any year has either 365 or 366 days. Similarly, any half-year has either 182.5 or 183 days. As leap-years cannot follow each other, then a year and a half is either 547.5, 548 or 548.5 days” [paragraph 21]. The half figures are then rounded to the nearest whole number to conclude that 548 days is equivalent to 18 months.

The status of Home Office guidance

Additionally, the Upper Tribunal confirmed that where a rule is ambiguous and following the harsher interpretation in the Home Office guidance would be less favourable to the applicant, it should not be relied upon – in this instance where 18 months as 540 days would prevent the appellant from meeting the rules.

Finally, relying on the case of Alvi [2012] UKSC 33, the Upper Tribunal emphasised that the Home Office guidance definition of 18 months as 540 days was creating a rule and thus not allowed.

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