In a recent case – Nesiama & Ors, R v The Secretary of State for the Home Department [2018] EWCA Civ 1369 – the Court of Appeal has considered further information regarding the 180 days absence requirement in Indefinite Leave to Remain (ILR) applications.
Under the Immigration Rules (HC 395 as amended) ILR is granted to holders of various types of leave when the applicant has resided in the UK for a ‘continuous period’. Under paragraph 245AAA(a)(i) the period of residence ‘shall be considered unbroken where the applicant has not been absent from the UK for more than 180 days during any 12 month period’. These rules have changed recently as we previously covered.
There are exceptions to the 180 days absence requirement if there are ‘serious and compelling’ reasons.
The appellant in Nesiama held leave under Tier 1 (General), a type of leave that is no longer available. She applied for ILR in 2016 having spent five years in the UK. During the first two years of her leave she had been absent from the UK for 215 days and 284 days respectively. The absences were due to the need to relocate her business to the UK and to support her frail father during a period when her mother had been kidnapped. Her application was refused and this decision was upheld in the lower courts. Although the appellant’s absences to support her father may have been considered serious and compelling, her absences in relation to her business were not.
In the Court of Appeal proceedings, the appellant argued that the wording of the Immigration Rules only specifies that if one is absent for no more than 180 days they can be deemed a resident. The Rules do not specify that if one is absent for more than 180 days then the applicant should not be considered a resident. Rather, if an applicant was absent for more than 180 days, they should be able to evidence that they can be considered resident in the UK. This evidence could include owning property, maintaining a home, paying income tax and council tax, and other private and family connections.
The Court of Appeal did not agree with this interpretation. The Court held that in the ordinary meaning of the rules ‘resident’ meant having a ‘physical presence’ in the UK, and the Immigration Rules ‘intended to set a maximum number of days absence from the UK’. As a result, the appeal was dismissed as the appellant’s absences were over the 180 days absence requirement and did not meet the exceptions.
This case demonstrates how important the courts and the Home Office consider residence to be in ILR applications. If one is absent from the UK for more than 180 days, there must be ‘serious and compelling reasons’ of which relocating a business is not one. Evidence regarding one’s home, business, tax history and family connections is not enough by itself to meet the serious and compelling reasons exception. ILR applicants should carefully consider their absences over any 12 month period and limit their travel where appropriate.
If you require further advice about your residence and the 180 days absence requirement, please contact us.
