Bulletins | July 16, 2018

New Residency requirements for the indefinite leave to remain for Tier 1

Tier 1 investors and entrepreneurs should make urgent moves to keep a record of their overseas travel, under strict new government guidance on permitted absences.

The Home Office has changed the way it views absences from the UK when considering indefinite leave to remain (“ILR”). Tier 1 applicants may be eligible for ILR in the UK after residing here for a qualifying period of five years (with accelerated options for higher levels of investment or turnover).

During this time, the main applicant is expected to be continuously resident in the UK. The Home Office historically took a relatively relaxed view on “continuous residence”, allowing absences of up to 180 days in each of the five years.

But it has now unilaterally changed the policy with retrospective effect. Absences of up to 180 days are now permitted on a rolling year basis. Applicants must prove that their overseas travel does not exceed 180 days in any 12-month period – with no opportunity to “even out” absences over consecutive years.

Future travel must be planned on the new basis – but the inability to adjust for historic travel, where long periods of absence may have already broken continuity, is of more serious concern. It will not affect current immigration status but may delay the qualification date for ILR.

The Home Office has also begun to enforce residency requirements for the spouse of the main applicant, which may mean that partners and dependent children are deprived of the opportunity to obtain ILR.

Historically, if the main applicant met the residence criteria for ILR, the same status would be granted to the spouse or civil partner (or unmarried partner) holding dependent status.

Now, however, spouses and civil partners who obtain dependent status after 11 January 2018, or who extend their status with a new application beyond that date, will also have to demonstrate they have not been absent for more than 180 days in any twelve month period after the application date.

And beware, children will only be granted ILR if both parents qualify for ILR – thus, if the spouse does not qualify for ILR, the children will also not qualify.