ILR calculating continuous residence: new guidance 180 days

[carlos2011]

Everybody applying for ILR should note that UKBA has published new guidance on calculating absences abroad. It says it applied since July 2012. Here is the guidance:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

The guidance now says that there is an upper limit of 180 days for short business trips and short holidays abroad and that longer absences break continuity. The previous guidance did not have an upper limit for short breaks like that, although it seems some caseworkers treated it as if it did. If you now unexpectedly fall foul of the new guidance it would be best to consult a good lawyer who understands the area very well.

[geriatrix]

The policy has been on the website since July 2012.

Don't think there is any "real" change in terms of the "180". The one significant change has been the requirement of providing more detailed evidences to justify certain absences (business related, work related, compassionate reasons). If you read under "Exceptional discretion in cases where a continuous period has been broken" on the same page, you will note that the only difference is that UKBA is closing the loopholes that existed - now requiring applicants to provide compelling evidences for the "business / work related trips" or for other absences of compassionate reasons.

Simple letters certifying business / work related absences without addressing "why the applicant" are no longer sufficient - that is what this policy seems to suggest.

IMHO ....

[carlos2011]

I disagree, it's a big change. There was formerly no set upper limit, now there's a limit of 180 days. The 180 day limit used to apply only to absences other than the short breaks that could be disregarded (eg annual leave and business trips) and only applied where continuity had been broken, now it applies to all absences. The second bullet point of the exceptional discretion section makes no sense at all now, when previously you could understand the meaning by looking back through the old guidance. It also makes no sense to say that the continuity breaks after 180 days of absences - so the continuity breaks on the 180th day of absence, therefore the applicant needs to wait 5 years from the date of that break to apply again? That would clearly be the wrong interpretation, but that's how it looks at the moment.

[geriatrix]

It also makes no sense to say that the continuity breaks after 180 days of absences - so the continuity breaks on the 180th day of absence, therefore the applicant needs to wait 5 years from the date of that break to apply again?

Where does the policy guidance state so?

The policy guidance states "If total of all absences exceed 180 days over the five year period, continuity will be broken" and exceptions are mentioned in the paragraphs that follow. That doesn't necessarily mean that one has to wait for 5 years to apply again. What it means, just as it has always meant, is that the applicant may apply again at a time when the applicants's total absences in the qualifying period (5 years preceding the application) fall below 180.

As for the second bullet point in the "exceptions" paragraph, it appears that whoever has drafted the document or proof-read it has missed including the following text - (apart from those described in the paragraph / sub-heading above) - between the "abroad" and "but".

If in doubt, read the Tier 1 or Tier 2 settlement policy guidance for better understanding.

IMHO ....

[vinny]

I disagree, it's a big change. There was formerly no set upper limit, now there's a limit of 180 days.

That's incorrect. The UKBA had set a limit prior to 2005.

[carlos2011]

Vinny, it would be interesting to see the old policy that that letter was talking about, but what I'm saying is that this is a new requirement that was not in any of the previous versions of this guidance on calculating 5 years' continuous residence. In those previous versions there was no set upper limit to absences for short periods of leave such as holidays/business trips. The earliest version of the guidance I can find is Annex A of Section 1 - Settlement available on this page archived in April 2009: http://webarchive.nationalarchives.gov. ... schapter6/ From then until this latest document, the policy on short absences has been the same, ie no set limit. It's not clear if there was any published guidance immediately before that - maybe they just got by without guidance.

Sushdmehta, I think you're right about how they must in reality understand the word continuous, ie there is no specific date on which the break in continuity irrevocably occurs, but instead they look at the whole period of 5 years in question and say that that is not a continuous period.

[geriatrix]

Please keep the topic free for discussion about the difference between the old and the latest version of the mentioned policy.
Please do not post queries about your specific cases in this topic.

[vinny]

The old ILR guidance - Annex F.

[carlos2011]

Vinny, thank you - that is very interesting, and shows that as far back as 2005, when the ILR qualifying period was only four years, the policy was that there was no set upper limit for absences on holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom). Provided the applicant clearly continued to be based in the UK, those absences did not break continuity and there was no set limit.

It is therefore a longstanding policy that has been changed by adding what is arguably a new restrictive rule to this latest guidance, which says that there is now a 180-day limit for holidays and business trips and that anything above that breaks continuity and requires proof of "compelling grounds" to justify an exercise of discretion.

As I said in my first post, it would definitely be a good idea for anyone who falls foul of this new guidance or will fall foul of it when they come to apply for ILR to consider getting good quality legal advice on options. Out of interest, is anyone certain that the guidance really did appear on the site on 19 July 2012 (the date it is "valid from"?) I was keeping a pretty close eye on the guidance during the early part of August and didn't recall seeing it.

[parasiteslost]

Out of interest, is anyone certain that the guidance really did appear on the site on 19 July 2012 (the date it is "valid from"?) I was keeping a pretty close eye on the guidance during the early part of August and didn't recall seeing it.

If you look at the pdf document properties, it was created on 18/09/2012 15:59:02

[mcove]

As I said in my first post, it would definitely be a good idea for anyone who falls foul of this new guidance or will fall foul of it when they come to apply for ILR to consider getting good quality legal advice on options. Out of interest, is anyone certain that the guidance really did appear on the site on 19 July 2012 (the date it is "valid from"?) I was keeping a pretty close eye on the guidance during the early part of August and didn't recall seeing it.

Do you have real examples that after the new guidance was introduced some people with more than 180 days absences were rejected.
I have 209 days of absences (all are consistent with annual paid leave and none is longer than 17 days, which means I clearly was based in the UK all the 5 years). I called UKBA enquiry office and asked if it was an issue and they said I should be alright. Most people on this forum and other forums say that caseworkers don't usually pick on the absences a lot unless it is really a way above the limit.
I am not 100% confident I will be safe but if you don't have any examples then it is just a speculation on your part and your personal interpretation of the new guidance.

[carlos2011]

Hi mcove, I don't have examples and I wouldn't expect to - I've got nothing to do with anyone else's applications. I'm just talking about what this new guidance actually says compared to the old guidance. It's a big change, and that's not a question of interpretation - it's right there in the text. As to what the case workers will do with the guidance, who knows? People will probably post results on this site.

[dvinas]

From the old Annex F guidance:

there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in all.

From the old Chapter 6, Annex A:

there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in total for the whole five year period.

These are both identical, and very close to the statement in the new guidance. So, clearly, that limit has been in there all along. However, these were placed in the older documents under the section for discretion where continuous residence has been considered broken. It does make it sound like the 6 months relates to the aggregation of longer absences that are not consistent with annual leave or business trips.

Personally, I think they rearranged the wording a bit and re-ordered the document, but have made the end result less clear than before. Remember, this guidance is intended to guide caseworkers in deciding your case. They may show whatever discretion they decide while doing so. They may also have the same trouble understanding the guidance as we do, and quite possibly use the old interpretation, assuming nothing has really changed. If it were me, and I'd gotten this along with the 100 other memos I got on a weekly basis, I'd skim it, find it sounded the same as before (just reworded), and bin it. But that's just me.

Incidentally, I notice that question D2 on page 24 of the new SET(O) app says:

"Please confirm whether you have been outside the UK for any single absence over 3 months or one or more absences which amount to 6 months in total during the 5 year period."

So it would appear that they are still using the phrase "6 months" from the old guidance. Is no one else troubled by the fact that 6 months is really 182-3 days, not 180 days?

Also, if one has, say, 25 days of paid leave (common in my field), and used those in one-week increments to travel abroad, one could sandwich 5 days in between 2 weekends to achieve 9 days. That would turn into 45 days of annual-leave-based holidays per year that one could spend abroad. Thus, it's perfectly reasonable for someone to spend 225 days outside the country in 5 years, without going outside the "annual leave" clause. Why did they pick 180 days (or 6 months)?

[carlos2011]

Hi dvinas, I think you're right, in that in the old guidance that 6-month limit only applied to the absences that were inconsistent with annual leave and business trips. What they seem to have done is converted that limit into 180 days and moved it into the section on those short absences, where there was formerly no set limit, thus changing the rule.

As to why in this new guidance they chose to limit [b]short[/b] absences from the UK to 180 days, that's a good question. There doesn't seem to be any explanation or news item on the UKBA website, there's nothing in the guidance itself, and I haven't seen any consultation. It's easy for someone on 25 days' annual leave to rack up that many absences just on holidays while still working full time. For example take Christmas and Boxing Day. If they fall on Monday and Tuesday, for example, and New Year's then falls the following Monday, someone could take a holiday leaving the UK after work on Friday 22nd Dec and returning early morning on Tuesday 2 Jan and heading in to work. He or she would have been out of the UK for 10 days (if this excludes travel days) while using only 3 days of annual leave. Nevertheless that absence would be consistent with paid annual leave.

[abhisheks9]

Somehow even i agree with Carlos2011.
New guideline is contradictory, when it says first
"When assessing if an applicant has met the criteria for five years continuous period in the
UK, short absences abroad may be disregarded, provided the applicant has clearly
continued to be based in the UK"
then
"If total of all absences exceed 180 days over the five year period, continuity will be broken"
last time i checked was Annex B of 245DC document, and as Carlos says total absences of 180 days was nowhere mentioned.

Also, how can one prove holidays (consistent with annual paid leave)
Salary slip? because on time of ILR, only last 15 months earning is counted (for ext points) and leave could have been taken just prior to that.

[dvinas]

I agree that the phrase "If total of *all* absences..." is the concern. If you look at my quotes in the above post, you'll see that they used the term "6 months" instead of "180 days". Regardless, it appears that they rearranged the wording/paragraphs in such a way as to change the way things are interpreted. Bear in mind that this presumes the caseworkers have read the new guidance carefully and noticed the difference, and therefore apply this new standard. Such a change may not even have been intentional.

I just spoke to an immigration lawyer, and I mentioned this new change to the guidance. He said that the most important thing was the immigration law itself, as that is, finally, what UKBA have to adhere to. They have wide discretion, which is what's at issue here. He also said that, strictly speaking, the immigration law only mentions "continuous residence," so UKBA has a history of interpreting that as meaning NO absences whatsoever, and then applying discretion on top of that. However, the immigration court takes a much more liberal view, realising that we live in a global age where people do travel around a lot. Thus, reasonable travel is generally looked upon favourably by the court.

He also mentioned that UKBA is aware that they have no way to prove the actual number of days you've been absent from the UK. Therefore, if the only reasoning they have for turning down your application is due to absences, then, upon appeal, they would have a difficult time proving you'd broken that rule. (I assume this is because, as mentioned in UKBA guidance itself, they don't stamp your passport on exit, and thus it's difficult to be sure exactly when you left.) Hence, it would seem they tend to use reasonably wide discretion, lest they land in court with no real way to defend a decision.

Also, although he said they do, indeed, exclude annual leave, apparently those of us that are self-employed do not qualify for annual leave. Lawyers try to make the case that we should be entitled to an equivalent number of days as if we were normally employed.

***Please note: I am only reporting what I was told, so please take the previous comments with a grain of salt. If your situation is at all complicated, you might do well to consult a lawyer yourself. This is not intended as advice on how to proceed!

[kbaw]

I have gone through almost the entire archives of the immigration rules and guidelines, as far back as 2008, in relation to T1 General Migrants. The immigration rules only refer to the phrase of "Continuous Residence". The guidelines IDI's go a little further and say short breaks for holidays and business are to be disregarded as long as one continues to be based in the UK, without going into any details on the definition of short. The same is true of the modernized guidance as well.

The only thing that really shifts the goal post is the 180 day cut of, after which residence is broken. This has only been added in version 5.0 of the document in Jul/12.

In the same document the Tier 1 Entrepreneurs and Investors are ALLOWED to be away from the uk for up to 180 days in a year, with no consequence, this 180 days in a year not over 5 years. So the UKBA acknowledges that it is normal for a businessman/Entrepreneurs to be away for business for up to 180 days. Now if the same businessman or Entrepreneur hires a person under T1 General and asks him to do the same job as him which may require him to be absent from the UK for long periods than that T1 General Migrant will be affected when it comes to ILR. I believe this is clear discrimination by the UKBA.

Correct me if I am wrong, but I don't believe the immigration rules differentiate between continuous residence between different categories (with the exception of length of residence i.e 5yrs, 4yrs, 3yrs...) so why should UKBA treat one class of migrant differently than the other.

Also if you have been in this situation for the last five years what guidelines do you follow, the immigration rules, IDIs or modernized guidance. If the answer is all three, than these rules are amended from time to time, for example the modernized guidance for calculating continuous residence are reviewed and modified every 6 months. So which ones apply to you. What might have been perfectly fine 6 months ago can be modified and invalidate your application latter on, which has happened in this case, as it is clear caseworkers are requires use the most current guidelines for all cases. So previously one might have been in a situation where he is taking his paid holidays overseas and going on short business trips and feel that he is withing the guidelines and dose not have to rely in case worker discretion. Now all of a sudden he finds his residence may have been broken and he has to apply for discretion.

One might say the rule has been there all along we are just clarifying it further. If you take this statement on its merits than one has to raise the matter, that these guidelines are meant for the caseworkers who are trained professionals in these matters and deal with this every day. If they need further clarification, than this means the previous documents were not clear enough even to the case workers, so what chance dose a normal migrant have in understanding and interpreting these rules properly, in order to comply with the rules. Thus by publishing guidelines that are not clear, UKBA has misguided and misled migrants.

Further more it is ok to say that the immigration law is the final word and the judges only need to refer to the law and not the guidelines from UKBA. I ask why dose one have to pay the UKBA an unreasonable amount of money to asses your case and to reject it on in accurate and misleading guidelines and then bear the extra cost of appealing. I am not factoring in here the amount of anxiety and loss of time and life this causes.

Finally, I believe these rules are in place to ensure people of higher caliber come to the UK and settle in the UK and just come here get ILR/Citizenship and go away. However simply because of the fact that so much of the rules are up to the discretion of the case worker and not set in concrete it makes it hard for people to make long term decisions related to actual settlement, as they are unsure of there future here. So now, dose one wait until ILR before he buys a house and so on .....

I don't know that's my rant of the day, I hope this prompts a few people into action and something can be done about this. Individually I am not going to let this go down easily, because no one has the right to treat me like this. I believe if every one thinks like this then we can make a difference.

[dvinas]

My impression, from numerous conversations, is that UKBA are making things harder for Tier 1 (General) applicants due to the excessive fraud they've experienced, especially among self-employed applicants. This probably has something to do with the different restrictions. Also, an entrepreneur with enough money to set up a qualifying business would probably need to be out of the country a lot more on business. For us regular guys and gals, they want to make sure we are serious about settling here, rather than just using it as a ruse to gain citizenship in UK and EU.

While I agree with you on many of these points, and share your frustration, I don't think that railing against the injustice of it all is the proper way to go. Fighting the "discrimination" battle would be costly, and you might not win. Better to look at the fact that UKBA staff are constrained within certain rules and guidelines, but they do have quite a bit of discretion. The bottom line is that you must convince them that your absences were reasonable, and that a reasonable person would see that you are, indeed, resident in the UK for the qualifying period. If you see them as human beings, and treat them with respect, you will probably go a lot farther. Just my 2p.

[abhisheks9]

News dated 22-Nov-12

http://ukba.homeoffice.gov.uk/siteconte ... r/35-rules

Settlement
Amendments to clarify the absences from the UK that are allowed during the continuous residence period for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person).

[ryan2020]

News dated 22-Nov-12

http://ukba.homeoffice.gov.uk/siteconte ... r/35-rules

Settlement
Amendments to clarify the absences from the UK that are allowed during the continuous residence period for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person).

cant see any new set o form or guidance on ukba website yet. today is 13th december

[carlos2011]

The new guidance is on there now, and it finally looks like the immigration rules and the guidance make sense (at least in the continuous leave calculation). Here is the guidance (not sure when it appeared): http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

It seems that the rule is now that continuous residence means that you must have fewer than 180 days' absence in any of the four or five 12-month periods that make up your qualifying period of continuous residence. Hooray!

[abhisheks9]

http://www.whatdotheyknow.com/request/c ... ermited_ab

[abhisheks9]

Indeed awesome news!!
but can we rely on UKBA not to change it back to 180 in total 5 yrs? especially when we are nearing the date.

The new guidance is on there now, and it finally looks like the immigration rules and the guidance make sense (at least in the continuous leave calculation). Here is the guidance (not sure when it appeared): http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

It seems that the rule is now that continuous residence means that you must have fewer than 180 days' absence in any of the four or five 12-month periods that make up your qualifying period of continuous residence. Hooray!