Cambridge academic misses out on Indefinite Leave to Remain due to excess absences

A recent post by a young Cambridge academic who was refused indefinite leave to remain after spending a year abroad has triggered a viral reaction on Twitter.

Asiya Islam, a sociology PhD student, made her application under the so-called “long residence” rule. In accordance with this rule, people who have lived lawfully in the UK for a “continuous period” of ten years can apply for indefinite leave to remain. 

However, continues residence can be “broken” if too much time is spent outside the UK within this ten year period as was the case with Ms Islam who spent twelve months in India conducting research for her Cambridge PhD.

Ms Islam relied on the Immigration Rules which were changed on 1 October 2019 to expressly state that overseas research absences will be disregarded for applicants in PhD-level occupations. 

The problem for Ms Islam is that this exemption only applies to people who are applying for settlement after five years in the UK holding a Tier 2 work visa sponsored by an employer which is an entirely different immigration category. 

The wording of the guidance implies that the absences must arise out of “compelling or compassionate circumstances”.

Compassionate circumstances might be for example frequent trips outside the UK to care for a terminally ill parent. A compelling event could be if the applicant is physically prevented from returning to the UK, for example, because of an air-traffic control strike or unexpected hospitalisation abroad. 

What next for Asiya Islam?

If Ms Islam’s previous visa has not yet expired then this refusal should not effect her status. She will be allowed to remain on the terms of her previous visa until that visa expires.  

However, if her last visa expired while the indefinite leave application was under consideration, she will be given a right of appeal in accordance with the Convention on human rights. Alternatively, she may be able to renew her previous visa for the time being or apply for an alternative visa.