When applying for indefinite leave to remain in the UK, an applicant must show that they have been resident in the UK throughout the five year period although the Immigration Rules allow absences from the UK of up to 180 days per year. An additional requirement when applying for indefinite leave to remain in the employment related categories, such as Tier 2 or the former work permit category, is that all absences must be consistent with the leave in that category such that aside for normal annual leave, any other absences from work must be work related and must be confirmed by the employer in a letter from them.

Further, in calculating continuous period of residence in UK for the purpose of indefinite leave applications, one must not have overstayed in the UK for more than 28 days nor must there be a gap of more than 28 days between the date the previous visa expired and the filing of an application from overseas. The only circumstance in which the Home Office will deem that continuous leave is not broken is where the migrant has suffered serious illness or their representative is unable to submit the application in time. This must be supported by appropriate medical documentation.

The Edwin Coe Immigration team recently managed to secure indefinite leave to remain for one of its clients where not only had the client been away for nine months (well above the 180 day limit) as the client had to look after his mother who became ill following his father’s death, but also his continuous leave had been broken as his application for a new Tier 2 visa was filed more than four months after his previous Tier 2 (ICT) visa had expired which was much more than the 28 day period allowed. We managed to successfully argue that the offer of employment to the applicant was made within 28 days of his visa expiring and also argued that were it not for his father’s death and mother’s illness, the client would have come to the UK much earlier. Both arguments were accepted by the Home Office. This is a particularly significant achievement in view of the fact that the Home Office has become increasingly reluctant to exercise discretion in the favour of applicants and has been generally pedantic about following the rules to the letter.

If you want us to assess whether you are eligible to apply for indefinite leave to remain or have any complexities which you feel might hinder you from making a successful application, please do not hesitate to seek our assistance.

If you would like further information on this topic or any other related matter please contact the Edwin Coe Employment and Immigration Team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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