Stricter counting rules for ‘continuous presence’ take effect for permanent residency

IMPACT – MEDIUM

What is the change? U.K. Visa and Immigration has begun to impose stricter counting rules when considering permanent residency applicants who have been away from the U.K. during the requisite five-year period of continuous lawful presence.

What does the change mean? Under the new rules, applicants who are absent for more than 180 days within any rolling 12-month period during the five years may be disqualified for permanent residency. Previously, adjudicators only refused applicants who were absent for more than 180 days within any of the five separate consecutive 12-month periods preceding the application date.

• Implementation time frame: Immediate. The change took effect Jan. 11.
• Visas/permits affected: Indefinite leave to remain (permanent residency).
• Who is affected: All foreign nationals applying for indefinite leave to remain based on five years of continuous presence in the U.K.
• Business impact: The stricter rules are likely to result in more applicants being rejected for permanent residency than under the old counting rules, especially those traveling extensively for business or undertaking short-term assignments outside the U.K.
• Next steps: The new calculation method applies to all applications filed after Jan. 11. However, if the qualifying period includes time before this date and this change would cause exceptionally harsh consequences, it is possible to request discretion by setting out reasons in a letter accompanying the application. Foreign employees and their family members should carefully track their travel history to ensure that they are not away from the U.K. for more than 180 days during any rolling 12-month period.

Background: The change to the calculation method was published in the latest Statement of Changes to the Immigration Rules that took effect Jan. 11.

BAL Analysis: Employees and assignees planning to apply for permanent residency should be aware of the stricter criteria and be sure that their absences do not violate the new calculation rules by cumulatively exceeding 180 days in any 12-month period during the qualifying five-year residency period. If absences exceed those permitted, then employees should work with BAL to put forward a compelling case for the absences to be disregarded.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.

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