31 / 03 / 2019

Absences under the Tier 2 Indefinite Leave to Remain route

When applying for Indefinite Leave to Remain, the Home Office assesses your intention to make the UK your permanent home. One method to measure intention, is through your total absences within the recent qualifying period. The Home Office would look at several aspects:

  • How many trips have you taken outside the UK?
  • Did you return after a short break
  • Did you have valid leave upon leaving?
  • Did you apply for leave to return within a short time of leaving the UK?
Absences under the Tier 2 Indefinite Leave to Remain route
Absences under the Tier 2 Indefinite Leave to Remain route

No more than 180 days absent within a 12 months’ period

The Home Office place a strict 180 days’ limit on any 12 months’ period throughout the 5 qualifying years, and when asked to exercise discretion are often reluctant to do so. The reason for this reluctance is partially due to the Home Office’s own view that the 180 days’ threshold is already a generous one.

Absences exceeding 180 days

Whilst most are aware of the Immigration Rules and requirements, unexpected events can cause planned trips to overrun. The Home Office may exercise discretion to disregard certain excessive absences due to ‘Serious or Compelling Reasons’ such as:

  • serious illness of the applicant or a close relative
  • a conflict
  • a natural disaster, for example, volcanic eruption or tsunami
Absences under the Tier 2 ILR Route
Absences under the Tier 2 ILR Route

Our successful case

Here at QC Immigration, we have experience with complex cases where certain legal requirements are not met. For example, we have recently requested the Home Office to exercise discretion on a refusal of Indefinite Leave to Remain (hereinafter ILR) of a client who had applied after spending 5 years in the UK under Tier 2 (General) visa. Below, is a summary of the facts and the challenges faced:

The client approached us after he had applied for ILR on his own and was refused due to absences of 184 days in the most recent 12 months’ period, exceeding the limit.

We lodged an Administrative Review to the Home Office, drawing attention to the client’s nature of work which required frequent travel abroad. Furthermore, we explained the unavoidable medical treatment which resulting in late departure back to the UK. We argued that the Home Office had failed to exercise discretion given the marginal 4 days of excessive absences due to exceptional and compelling circumstances. We also supported the client’s local MP in escalating the matter to the relevant Home Office department. The Home Office was initially reluctant to withdraw their decision. However after relentless petitioning and legal arguments, our client was finally granted Indefinite Leave to Remain status.

This experience illustrates that the Home Office adopts a strict approach when dealing with absences over the limit. Nevertheless, excessive absences due to ‘Serious or Compelling Reasons’ may be accepted with strong evidence and robust legal arguments.

If you are planning your Tier 2 route towards Indefinite Leave to Remain, call us on 0203 637 8633 or email info@qc-immigration.com to discuss further with our Tier 2 Specialist Lawyers.

Home Office resources:
https://www.gov.uk/settle-in-the-uk

Testimonials

What do our users say

Thank you very much for your contribution and good job you have done for me and my family. Today, I feel that thanking you is not enough. You will remain in our hearts and we will always have this deepest and sincere regard for you, as you have always shown your kindness and your work have been appreciated by the whole family.

Long Residence Settlement (10 years) client – Mauritian

Qiyin is an extremely diligent and thorough immigration lawyer. She took the time to fully understand my case and application for the highly skilled migrant program. She was very careful to consider both the short and longer term issues related to my application and provided very balanced and frank advice. My highly skilled migrant visa was successfully renewed thanks to her advice and help. I highly recommend her.

Tier 1 (General) visa client – Singaporean

I would like to thank you for all the hard work you’ve done for us in the past few years! I am now finished with the whole process and had my UK Citizenship ceremony. We couldn’t have gotten this far without you!

Entry Clearance Settlement (Spouse) visa client – Canadian

Thank you for all your help. I got the visa this morning and look forward to going on holiday. See you again in 30 months for the next visa.

PEO same-day service (Spouse leave to remain) client – Thai

We are so glad that our friend recommended you to help with our ILR application and we have no doubt it may have been a different story if we were applying without your support! We appreciate your professional approach and knowledge on immigration matters and wish your business well in the future (we are sure you will be very successful). Have no doubt we will be using your services for our application for Citizenship.

Indefinite Leave to Remain (Spouse) client – Russian

The QC Immigration team has proved an absolute star on the immigration front and my son’s fiancée is now happily settled, thank you again.

Partner (Fiancée) Settlement Visa – Brazilian

Many thanks for all your work on our application, especially since I contacted you on short notice! I contacted you on Sept 22nd and we signed up with you on/around Sept 27th! So we pulled this all together a little over 3 weeks.

Premium Service (Fiancée) Partner visa client – American

You have exceeded our expectations by saving us so much time and money when organising this! Thank you for also co-operating with our investment manager and accountant to ensure everything ran smoothly.

Tier 1 Investor (Super Premium Service) client – Chinese

Naturalisation (British Citizenship) client - Dutch

EEA Permanent Residence client – Belgian

My family and I were very emotional receiving the good news today. Thank you for all your help and we will definitely recommend you to our European friends who are planning ahead after Brexit!

Naturalisation (British Citizenship) client – Dutch

My family and I were very emotional receiving the good news today. Thank you for all your help and we will definitely recommend you to our European friends who are planning ahead after Brexit!

Naturalisation (British Citizenship) client – Dutch

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