Absences during your qualifying residence period for ILRIt is not always clear how many days absence from the country are allowed when applying for Indefinite Leave to Remain (ILR) and what happens if you go over the limit. Whilst information about residence requirements for citizenship is easy to find, this is not the case for ILR. To help you we have compiled a summary of what the requirements and restrictions mean for you and your application.
The Home Office do not make it clear that there are different limits on absences for applications for Indefinite Leave to Remain (ILR) than for citizenship.
The latest guidance from the Home Office can be found in their document, Indefinite Leave to Remain - calculating continuous residence period.
The continuous period is counted backwards from the date of application for ILR. For example, if your application date is 11 November 2015:
- Year 1 is 11 November 2015 to 12 November 2014
- Year 2 is 11 November 2014 to 12 November 2013
- Year 3 is 11 November 2013 to 12 November 2012
- Year 4 is 11 November 2012 to 12 November 2011
- Year 5 is 11 November 2011 to 12 November 2010
Typically, if your absences within any 12 consecutive month period of the 5 year continuous period do not exceed 180 days, you will not have broken the continuous period for ILR. You must provide evidence of all absences.
A single absence exceeding 90 days will not break continuity, but continuity will be broken if absences in any of the 12 consecutive-month periods that make up the continuous period exceed 180 days.
There will be no discretion applied to any absence exceeding 180 days in any of the consecutive 12 month periods of the continuous period. If you are absent for 181 days you have broken continuous residence. Only whole days are counted towards this limit.
The reason for this strict limit is that applicants are expected to show their continuous residence in the UK and their intention to continue this residence. This means significant absences will need to be explained.
Absences must be for a reason consistent with the original purpose of entry to the UK or for a serious or compelling compassionate reason in the following categories:
- Tier 1 (General)
- Tier 2 (Intra-company transfer)
- Tier 2 (General)
- Tier 2 (Minister of religion)
- Tier 2 (Sportsperson)
- Tier 5 International Agreement (private servants in diplomatic households granted under rules in place before 6 April 2012 only).
And the following sub categories of the points-based system:
- work permit holder
- representative of an overseas newspaper, news agency or broadcasting organisation
- representative of an overseas business
- employee of overseas governments (except those exempt from control) or the United Nations (UN) or other international organisation of which the UK is a member
- minister of religion, missionary or member of a religious order
- airport-based operational staff of overseas-owned airlines
- private servants in diplomatic households
- domestic workers in private households
- person established in business under a European Community (EC) Association Agreement
Absences must be connected to the applicant’s sponsored or permitted employment, or the permitted economic activity being carried out in the UK, for example, business trips or short secondments. This also includes, any paid annual leave which must be assessed on a case by case basis and must be in line with the UK statutory annual leave entitlement.
Evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave, must be provided. Tier 1 (General) applicants who are self-employed or in business must provide a letter of explanation of their business-related absences, including any time spent on holiday outside the UK. However, time spent absent from the UK for extended periods, particularly if the business is not continuing, would not be allowed.
Compassionate reasons will vary but can include:
- serious illness of the applicant or a close relative
- a conflict, or
- a natural disaster, for example, volcanic eruption or tsunami.
Tier 1 / High-value migrants
The applicant must provide reasons for absences in all categories except:
- Tier 1 (Investor)
- Tier 1 (Entrepreneur)
- Tier 1 (Exceptional talent), and
- highly skilled migrants (applying under Appendix S of the rules)
- people established in business under the provisions of a European Community (EC) Association Agreement (paragraph 222).
For people applying under grounds of long residence, continuous residence is considered to be broken if the applicant has:
- been absent from the UK for a period of more than 180 days at any one time, or is absent from the UK for a shorter period but does not have valid leave to enter the UK on their return, or valid leave to remain on their departure from the UK
- spent a total of 540 days outside the UK throughout the whole 10 year period.
Continuous residence is not considered broken if the applicant:
- is absent from the UK for 180 days or less at any one time, and
- had existing leave to enter or remain when they left and when they returned – this can include leave gained at port when returning to the UK as a non visa national.
If the applicant had existing leave to enter or remain when they left and returned to the UK, the existing leave does not have to be in the same category on departure and return. For example, an applicant can leave the UK as a Tier 4 (General) student and return with leave as a spouse of a settled person. Continuous residence is not broken as the applicant had valid leave both when they left and returned to the UK.
If an applicant was in the UK with a right to reside under European Economic Area (EEA) regulations when they left the UK and was re-admitted under the EEA regulations, continuous residence is not broken.
Continuous residence is broken if an applicant receives a custodial sentence by a court of law and is sent to:
- a young offender’s institution, or
- a secure hospital.
Any time the applicant spends in one of the above establishments does not count as continuous leave. Any leave accumulated before sentencing will be disregarded and only residence after release from custody will be counted as continuous residence.
Continuous residence is not broken if an applicant receives a suspended sentence from a court of law.
Spouses, fiances and partners
The Immigration Rules do not say that you must have been in the UK for the entire 5 years of your visa or permission to remain. Your application to settle here will be judged on its merits, taking into account your reasons for travel, the length of your absences, and whether you and your partner travelled and lived together while you were outside the UK. If you have spent a limited time abroad in connection with your job, for example, this should not count against you.
However, time spent outside the UK does make a difference to applications for citizenship. If you apply for citizenship as the husband, wife or civil partner of a British citizen, you must show that you have been living in the UK for the last 3 years (the ‘residential qualifying period’), and that you have spent no more than 270 days outside the UK during those 3 years. Also, you must have spent no more than 90 days outside the UK in the last 12 months of the 3-year period. (We have discretion to allow absences above the normal limits in some circumstances.)