Calculating Continuous Period for ILR

[AW_UK]

Dear Friends,

I have a question regarding the recent changes in the rules for calculating continuous period for 'Spouses' for ILR (Indefinite Leave to Remain) application. These changes are implemented on 11-January 2018.
https://www.gov.uk/government/publicati ... riod-in-uk

My question pertains to PBS Spouse for the clause which says that 'the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period' to be eligible for the ILR.

The policy document further outlines the 'Exceptional Cases' (page-17) and goes on to state that the 'Absences of more than 180 days in any 12-month period for employment or economic activity reasons are not considered exceptional' ..... does this statement applies to the main PBS applicant as it does not seems relevant to the PBS spouse/dependent? The policy document looks confusing as it generally addresses the requirements for the main PBS applicant but then the document states (Page-4) that the document is applicable to the PBS dependent partners category as well. The only reference to the PBS Dependents are mentioned on Page-8 of the document.

The new 180 days restriction on absences due to overseas employment makes sense for the main PBS applicants because the primary reason they are granted entry to UK is to work or do business in UK. Whereas the partner of the PBS are allowed to enter UK not on the basic premise to work in UK; so the employment or economic activity for the spouse should be a legitimate consideration for 'Exceptional Cases (page-17)'. An example exceptional case where spouse may have to work overseas that may exceede 180 days; when there are dependent children in UK University as PBS dependents paying international fee. The international student fee is too high (GBP 16-22K) and may force the spouse to work overseas to supplement the income from the main PBS applicant. The spouse will however be visiting family in UK on a rotational assignment (28 days overseas and 28 days in UK) and have joint mortgage, paying utility bills, insurance, council tax and children Uni fee, etc., .......

I would highly appreciate thoughtful comments on this aspect as the new 180 days rule (Jan 2018) will cause us a extremely harsh financial consequence that was not envisaged at the time when we have got 'leave to enter' back in 2016.

Many thanks for your consideration.

[zimba]

The 180 days rule is now applicable to ALL migrants under ALL routes regardless of their circumstances.
Exceptional circumstances are the ones which are completely outside the control of the migrant (I want to increase my income by working overseas is not an exceptional circumstance as it is within your control and desire)

You also must remember that the 180 days absence rule DOES NOT apply to PBS dependants who got their visa before 11 Jan 2018.
For PBS dependants this rule applies ONLY AND ONLY to any residence period where the visa was granted ON or AFTER 11 Jan 2018

[AW_UK]

Dear Zimba - Many thanks for your prompt reply and valuable advice. I can see light at the end of the tunnel.

Can you please further help as requested below?

(1) With reference to your advice 'for PBS dependent the new 180 days rule applies to any residence period where the visa was granted on or after 11-Jan 2018', can you please provide the link for the relevant Home Office document/website? I was not able to find this explicit statement.

(2) When is the new 180 absence days rule will apply in the following situation (PBS Spouse)?
- PBS spouse entry clearnance was granted on 01-12-2015 with a validity up to 27-09-2018.
- PBS spouse is planning to apply for the FLR/Extension around end August 2018.

I look forward to hear from you soon.
Many thanks
AW

[secret.simon]

(1) With reference to your advice 'for PBS dependent the new 180 days rule applies to any residence period where the visa was granted on or after 11-Jan 2018', can you please provide the link for the relevant Home Office document/website? I was not able to find this explicit statement.

(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which the applicant must:
...
(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.

(2) When is the new 180 absence days rule will apply in the following situation (PBS Spouse)?
- PBS spouse entry clearnance was granted on 01-12-2015 with a validity up to 27-09-2018.
- PBS spouse is planning to apply for the FLR/Extension around end August 2018.

The rule will apply to the PBS spouse at the start of the next grant of leave in August 2018.

[AW_UK]

Dear Sir,

Many thanks for the clarity. Your help is much appreciated. I will summarize as follows:

(1) I understand that as PBS dependant, I can stay overseas for more than 180 days (if required) before the start of the next grant of leave in August 2018. Post next grant of leave (FLR), I can use 180 days absence allowance starting around end Aug-2018, which will allow me to stay overseas straight till Feb 2019 (180 days to be calculated to determine a date in Feb 2010).

(2) I would like to bring to your attention the following example on Page-8 & 9 of the Home Office, Calculating Continuous Period for ILR (Ver 16), which is quite confusing or rather contradictory i.e.,

"PBD Dependants
You must not include any absence from the UK during periods of leave granted under the rules in place before 11 January 2018 towards the 180 days allowable absences. For example, if a dependant's qualifying period includes initial leave granted 1 January 2015 to 31 December 2017, and an extension granted from 1 January 2018 to 31 December 2019, you must not count any absences before 1 January 2018."

I would have thought that no absences should be counted until 31 Dec 2019 as the extension was granted on 1-Jan 2018 which is before the new rule was put in place on 11-January 2018. Am I missing something here?

(3) For PBS dependant, the absences can be connected to the employment outside the UK. And no evidence is required in this regard. Correct?

Thanks for the great help.

[AW_UK]

Hi,

Any further guidance on the above request is highly appreciated, in particular Item-2.

Many thanks.

[Djsuccess]

Dear Sir,

Many thanks for the clarity. Your help is much appreciated. I will summarize as follows:

(1) I understand that as PBS dependant, I can stay overseas for more than 180 days (if required) before the start of the next grant of leave in August 2018. Post next grant of leave (FLR), I can use 180 days absence allowance starting around end Aug-2018, which will allow me to stay overseas straight till Feb 2019 (180 days to be calculated to determine a date in Feb 2010).

(2) I would like to bring to your attention the following example on Page-8 & 9 of the Home Office, Calculating Continuous Period for ILR (Ver 16), which is quite confusing or rather contradictory i.e.,

"PBD Dependants
You must not include any absence from the UK during periods of leave granted under the rules in place before 11 January 2018 towards the 180 days allowable absences. For example, if a dependant's qualifying period includes initial leave granted 1 January 2015 to 31 December 2017, and an extension granted from 1 January 2018 to 31 December 2019, you must not count any absences before 1 January 2018."

I would have thought that no absences should be counted until 31 Dec 2019 as the extension was granted on 1-Jan 2018 which is before the new rule was put in place on 11-January 2018. Am I missing something here?

(3) For PBS dependant, the absences can be connected to the employment outside the UK. And no evidence is required in this regard. Correct?

Thanks for the great help.

All these rules, as hard as they may seem are set for a purpose. Dependent visas are granted on the premises that partners and families would like to live together or at least see each other regularly without restriction. The new 180 days absence rule extended to those on dependent visas means that dependents will no longer be able to live and work abroad while the main applicant is in the UK. Especially if the dependent is looking to apply for ILR in future.

[zimba]

I would have thought that no absences should be counted until 31 Dec 2019 as the extension was granted on 1-Jan 2018 which is before the new rule was put in place on 11-January 2018. Am I missing something here?

If the visa was granted before 11 Jan 2018, the new rules do not apply

For PBS dependant, the absences can be connected to the employment outside the UK. And no evidence is required in this regard. Correct?

Correct

[AW_UK]

Thank you all for the great help.

Best regards

[yash286]

Hi AW_UK, Zimba,

I found your above posts regarding PBS Dependant very useful and relevant to my situation. Here's my situation, it might sound similar and is probably boring to read again but some clarity is hugely appreciated.

My wife (PBS Dependent) has her BRP date: 26/08/2018 to 22/05/2019.

Now, I understand that since 11/01/2018, the new rule states that dependents must also be in the UK for 180 days per year and also on a rolling basis (rather than previous year by year basis).

Since her PBS Dependant visa was issued before 11/01/2018, does that mean the 180 day rule does not apply to her until 22/05/2019 (i.e. expiry of her current BRP)? She intends to be out of the country for more than 180 days from Sept'18 to April'19, hence the question.

Does this mean that the 180 day ILR rule only applies when she is issued with her next visa/extension from 23/05/2019 onward?

Thanks.

[yash286]

Sorry, I made a small mistake in my query above. Corrected post and question:

Hi AW_UK, Zimba,

I found your above posts regarding PBS Dependant very useful and relevant to my situation. Here's my situation, it might sound similar and is probably boring to read again but some clarity is hugely appreciated.

My wife (PBS Dependent) has her BRP date: 26/08/2016 to 22/05/2019.

Now, I understand that since 11/01/2018, the new rule states that dependents must also be in the UK for 180 days per year and also on a rolling basis (rather than previous year by year basis).

Since her PBS Dependant visa was issued before 11/01/2018, does that mean the 180 day rule does not apply to her until 22/05/2019 (i.e. expiry of her current BRP)? She intends to be out of the country for more than 180 days from Sept'18 to April'19, hence the question.

Does this mean that the 180 day ILR rule only applies when she is issued with her next visa/extension from 23/05/2019 onward?

Thanks.

[AW_UK]

Hi,

I am no expert but my interpretation of the new rule is consistent with your understanding, i.e., the new rule for 180 days absences will apply on your wife ONLY when she will get the extension in May 2019.

Any absences before May 2019, when she was on Leave granted before 11-Jan 2018, will not effect her ILR application.

However, you should be able to provide evidence of subsisting relationship such as:
(1) Joint UK bank accounts
(2) Joint mortgage or tenancy contract in UK
(3) Car and home insurance
(4) Utility bills on joint names
(5) Joint council tax

Hope this helps.

[AW_UK]

I would have thought that no absences should be counted until 31 Dec 2019 as the extension was granted on 1-Jan 2018 which is before the new rule was put in place on 11-January 2018. Am I missing something here?

If the visa was granted before 11 Jan 2018, the new rules do not apply

For PBS dependant, the absences can be connected to the employment outside the UK. And no evidence is required in this regard. Correct?

Correct

Dear Zima,
Thanks for your reply. Is my understanding correct that you mean to say that the example for PBS Depandant Partner (above quote) in the guidance note is incorrectly mentioned by the Home Office author as the extension (in the example) granted from 1-Jan 2018 is prior to 11-Jan 2018 and any leave during this extension should not be counted during the extension leave; whereas the example implies that the absence should be counted after after 1-Jan 2018.

Another question: I have applied for PBS Depandant Partner extension on 15-August 2018. The application was approved on the same day and the letter issued by the Case Worker says the start date of the permission is 26-Sept 2018, which is actually the CoS start date of the Main Applicant. The BRP card has a issued date of '15-August 2018'.

Can you comment as what is the start date when the clock for 180 days rule start for the PBS Partner? Is it the date when the application was approved (15-August 2018), which is also the date of issue on the BRP card or the start date of the CoS/ date mentioned on the approval letter (26-Sept 2018)?

Many thanks

[zimba]

It is the date of approval

[AW_UK]

Hello Zimba,

Thanks for the prompt response. Sorry I made a confusing problem statement; which has created some confusion at my end.

- PBS Partner submitted extension application date: 15-Aug 2018
- Letter issued by the Caseworker (application is successful): 15-Aug 2018
- Issued Date mentioned on the BRP card: 15-Aug 2018
- CoS start date for extension (mentioned on the Tier-2 Main Applicant CoS): 26-Sept 2018

Can you please clarify that the start of the new 180 days absence rule (for PBS Partner) is from the 'Issued Date' mentioned on the BRP card and NOT the start date of the CoS?

Many thanks once again.

[CR001]

Hello Zimba,

Thanks for the prompt response. Sorry I made a confusing problem statement; which has created some confusion at my end.

- PBS Partner submitted extension application date: 15-Aug 2018
- Letter issued by the Caseworker (application is successful): 15-Aug 2018
- Issued Date mentioned on the BRP card: 15-Aug 2018
- CoS start date for extension (mentioned on the Tier-2 Main Applicant CoS): 26-Sept 2018

Can you please clarify that the start of the new 180 days absence rule (for PBS Partner) is from the 'Issued Date' mentioned on the BRP card and NOT the start date of the CoS?

Many thanks once again.

It is the date of approval

It is the VISA APPROVAL date. A PBS Dependent visa is not linked to your CoS/sponsor, they are dependent on YOU.

[AW_UK]

Thanks Zimba - I understand your point that the CoS is not linked to the PBS Depandant.

So which document is used as an evidence for the 'VISA APPROVAL' date'? Is it the 'Issued Date' shown on the BRP card?

Sorry for being pedantic but this may become a significant point for ILR if mis-understood.

[CR001]

Thanks Zimba - I understand your point that the CoS is not linked to the PBS Depandant.

So which document is used as an evidence for the 'VISA APPROVAL' date'? Is it the 'Issued Date' shown on the BRP card?

Sorry for being pedantic but this may become a significant point for ILR if mis-understood.

It is me, CR001, that posted the last post, not zimba.

Date the visa is approved. You state the date of caseworker approval and BRP is the same (i.e. 15 August), so what is the issue??

[AW_UK]

Thanks CR001. Much appreciated.

[phalanichi]

was my post deleted?

[CR001]

was my post deleted?

Your post was merged with your own topic.

Please do NOT tag your questions on other topics

indefinite-leave-to-remain/ilr-on-human ... l#p1675454

See also point 12 of the fourm rules FAQs (click to read)