New rules for calculating continuous period in the UK for ILR

On 26 January 2011 the UK Border Agency issued new revised guidelines to applicants in the United Kingdom here in a working category.  The changes in question relate to how the continuous period in the UK is calculated when applying for indefinite leave to remain (ILR). The Immigration Rules have always required an applicant to have remained in the UK for a continuous or unbroken period of time before they are allowed to submit an application for ILR. Part of the reasoning behind the rule includes the idea that the applicant has made the UK their home and is not merely trying to acquire a British passport. Under the revised guidance short periods outside of the UK do not break the continuity of an applicant’s presence in the UK if it can be shown that the applicant has continued to be based in the UK. The guidance provides two examples when continuity will not be broken:

• A holiday outside of the UK for a period of time consistent with the applicants paid annual leave entitlement.
• Business trips consistent with the applicant’s employment or self-employed status in the UK.

Tier 2 migrants can now include the period of time between them being granted entry clearance and them entering the UK towards their 5 years qualifying period providing the period in question does not exceed a total of 3 months.

Only in exceptional circumstances that can be described as compelling and of a compassionate nature can the UK Border Agency be asked to exercise its discretion and consider period of time outside of the UK as counting towards the qualifying periods. Even in that situation no period of time outside the UK should be longer than 3 months, and the total of time outside the UK must not be more than 6 months. The threshold for this test is high and will be difficult to meet.