In all immigration categories, it allows migrants to spend time outside of the UK, however you will need to be careful on how long you spend outside of the UK. You may also benefit from certain legal provisions, such as holding leave to remain prior to the changes on 24th November 2016.
Period between the issue of entry clearance and entering the UK
The period between entry clearance being issued and your entry to the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence.
This period will count towards the 180 days allowable absence in the relevant 12 month period. You do not need to provide evidence to demonstrate the reason for the delayed entry to the UK.
Entry to the United Kingdom through Ireland
If you have entered the UK through Ireland, and therefore have not passed through immigration control, then it would be difficult to prove your date of entry to the UK. The Home Office may consider alternative evidences to support the application.
General guide to the absences
The general policy as set out by the immigration rules, allows you to have absences of no more than 180 days on each qualifying periods. The periods of residency would depend on the immigration category you have chosen to apply under.
You must only include whole days in this calculation. Part day absences, for example, less than 24 hours, are not counted. Therefore if the applicant had a single absence during the 12 month period and arrived in the UK on day 181, the period would not exceed 180 days.
The Home Office understands that you will have absences of pleasure and work, however when this comes to employment, you need to provide certain evidences and explanations. You may also need to explain why you are spending considerable amount of time outside of the UK if this is not consistent to your employment contract.
You need to understand that when you apply for indefinite leave to remain, your intention is to settle in the UK and not be using this route to avoid applying for a UK visa. It also checks whether you have the correct intention.
Absences linked to reason for being in the UK – evidential requirements
For all other categories, absences must be consistent with, or connected to your 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 should be in line with UK annual leave entitlement for settled workers. For example, the statutory leave entitlement is 5.6 weeks’ paid holiday each year, which for workers who work a 5 day week is 28 days’ paid leave. However, many employers provide 25 or 30 days’ paid leave a year, plus bank holidays.
Short visits outside the UK on weekends or other non-working days are consistent with the basis of stay and do not break the continuity of leave. You must count such absences towards the 180 day limit.
Absences for serious or compelling reasons –evidential requirements
Serious or compelling reasons will vary but can include serious illness of the applicant or a close relative, or a conflict, or a natural disaster, for example, volcanic eruption or tsunami. You will need to provide evidences to support these absences.
Indefinite leave to remain application refusal
Where your application for indefinite leave to remain is refused, you will usually have a right to appeal against the decision. Your appeal rights would be limited under human rights grounds. The Immigration Act 2014 sets out the following grounds that an appeal can be bought forward:
Human rights or protection claim – those appeal rights are set out on Part 5 of the Nationality, Immigration & Asylum Act 2002.
Refusal to issue a residency permit under European Regulations.
Deprivation of citizenship whereby Section 40A of the British Nationality Act 1981 applies.
You will need to email us a copy of the decision letter to firstname.lastname@example.org, so we can discuss your options if your indefinite leave to remain application is refused.
Taking legal advice on the indefinite leave to remain application
We at ICS Legal will provide guidance and correct advice on the route to settlement.
You can speak to one of our UK Immigration Lawyers on 0207 237 3388 or you can email us at email@example.com if you are considering to apply for indefinite leave to remain.
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