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Settlement in the UK - why do absences matter?

09 February 2012

There are different reasons as to why a migrant leave his/her country of origin and come to the UK. Some might wish to invest in the UK by setting up a business under the Tier 1 Entrepreneur or Investor categories. Others might want to further their career or pursue academic or professional studies. However, the long term strategy is often, consciously or sub-consciously, to settle in this country.  In spite of its many misgivings the UK maintains a fairly relaxed policy, at least compared to other English speaking countries, in terms of permanent residence and acquisition of British nationality.

Residence requirements

There are different criteria to be met to qualify for UK settlement (indefinite leave to remain), but the key requirement must be that of “continuous residence in the UK”. The specified period will depend on which route the applicant is applying for UK settlement. In broad terms, the Immigration Rules are divided between “working route” and “family route”. Under most working visa categories (Tier 1/Highly Skilled or Tier 2/Work Permit), an applicant will need to spend five years in the UK to qualify for settlement. Under the family route (spouse, civil and unmarried partner), an applicant might be able to qualify having spent two years in the UK.

Accelerated UK settlement routes

Of course, there are exceptions. Under the Tier 1 Entrepreneur route, one might qualify for settlement having spent three years in the UK if the business were to employ 10 British or settled workers in the UK or generate a turnover of £5 millions. Under the Tier 1 Investor category, the required period for permanent residence might be reduced to two or there years depending on the level of investment. In addition, applicants who were granted leave to remain as Tier 1 Investors or Entrepreneurs are permitted to be absent from the United Kingdom for up to 180 days in any 12 calendar months without jeopardising their application for settlement in the UK.

Absences and breaks in residence

It’s important to understand how the period of residence for UK settlement is calculated and what constitutes a break leaving the applicant short or unable to qualify. Under Tier 1/Highly Skilled and Tier 2/Work Permit visa categories, an applicant should not spend more than 180 days outside the UK in the five years period.  However, short absences abroad, for example for holidays or business trips, may be disregarded, provided the applicant has clearly continued to be based here. In addition, discretion may be applied when there have been longer absences abroad, provided the absences were for compelling reasons.

In the case of settlement eligibility of spouses, civil or unmarried partners of UK citizens there is no specific requirement in the Rules that the entire probationary period must be spent in the United Kingdom. For example, where an applicant has spent a limited period outside of the United Kingdom in connection with his/her employment, this should not count against the applicant. However, if they have spent the majority of the period overseas, there may be reason to doubt that all the requirements of the Rules have been met. In such instances each case must be judged on its merits, taking into account reasons for travel as well as the length of absences.

Anyone submitting an application for UK settlement is strongly advised to seek professional legal advice.

 

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Migra & Co is a private immigration company, regulated by the Office of the Immigration Services Commissioner (OISC), reference number F200900038. This website is not a government website and as such, we are not linked or affiliated with the UK Visas and Immigration. We offer expert legal advice and flexible tailored solutions to both private and corporate clients to ensure that their immigration needs are met. If you wish to download or prepare a UK visa application form, you can do so free of charge by visiting the Official UKVI website.