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Why do absences from the UK matter?

17 June 2013

In order to qualify for settlement in the United Kingdom, a migrant will not only need to meet the specific requirements of his/her visa category, but also evidence that he/she has spent the relevant residence period being economically active, although there are some exceptions. Prospective applicants may qualify for a grant of Indefinite Leave to Remain (ILR) after 2, 3, 4 or 5 years depending on their visa category and on the level of assets and investments.

A Tier 1 investor will qualify after 3 years with an investment of 5 million and after 2 years following an investment of 10 million. However, a Tier 1 General will only qualify having spent 5 years in the UK. Having said this, if a Tier 1 General initially entered the UK or switched in country into the Highly Skilled Migrant Scheme prior to 6 April 2006, he/she might qualify after 4 years of residence (under Appendix S of the Rules). Hence, it is essential to have a good understanding of an applicant’s immigration history and his/her specific circumstances to be able to provide accurate advice.

Different Immigration Rules apply to family members of British Citizens or people already settled in the UK who will need to spend five years in the UK if they applied after 9 July 2012 and two years under the old Rules. Under the long residence, a migrant will qualify for settlement only after having spent 10 years of lawful residence in the UK. In 2012, the UK Border Agency abolished the category whereby an applicant might have previously qualify for settlement having spent 14 years in the UK  combining lawful and unlawful residence. However, an applicant who overstays by no more than 28 days only will not be deemed as having broken his/her lawful residence.

For immigration purposes, ”UK”, means Great Britain and Northern Ireland only. However, in some instances, time spent in the Crown Dependencies, namely Bailwicks of Jersey, Guernsey and Isle of Man, may be taken into consideration. Please note that any time spent working offshore on the UK continental shelf and territorial waters on ship or oil ring, beyond the 12 mile zone, does not count towards the continuous qualifying period for ILR. If the time spent overseas were to be  in connection with maintaining a migrant’s employment abroad, making the UK employment to be secondary, the continuous residence would be deemed broken.

For most visa categories, the UKBA allows an applicant to spend no more than 180 days outside the UK in any 12 months period outside the UK. It is important to note that the specific continuous period is counted backwards from the date of ILR submission. In addition only whole days of absences are counted. As a result, the day of departure and the date of arrival are not to be counted.

The guidance states that if an applicants is in the UK under the work permit, Tier 2 General or ICT and Tier 1 General:

“Absences must be connected to the applicant’s sponsored or permitted employment, or the permitted economic activity being carried out in the UK, for example, business trips or short secondment. This also includes, if appropriate, any paid annual leave. Evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave, must be provided. Tier 1 (General) applicants who are self-employed or in business must provide a letter of explanation of their business-related absences.”

However, a Tier 1 Investor or Tier 1 Entrepreneur does not need to provide a reason for the absences if they do not exceed 180 days per year.

Do you have questions about your absences and eligibility to settle in the UK? Please contact us.

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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.