Challenge of the 180 day absence limit for Tier 1 immigrants to the UK
The hurdle that most frequently deters business people from applying for leave to enter or remain in the UK is the limited time permitted to spend outside the UK during their qualifying period – 180 days.
Under the Tiers 1 and 2 Points Based System, applications for indefinite leave to remain will meet the ‘absence’ requirement if they are able to demonstrate that they spent continuous periods lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months.
Tier 2 sponsored workers may not encounter difficulties with this limit, but business people applying under the Tier 1 Investor and Entrepreneur Points Based System, may find this requirement restrictive. The reason for absence from the UK – work, leisure or any other reason – is not taken into account.
The specified continuous time period that must be spent in the UK as a Tier 1 Investor migrant is:
- 2 years if the applicant invested £10 million in the UK
- 3 years if the applicant invested £5 million
- 5 years if the applicant invested £2 million
Tier 1 Entrepreneur migrants can apply for settlement once they have reached five years’ continuous leave in the UK. Accelerated settlement after three years of continuous residence is available where the Entrepreneur:
- created at least 10 new jobs in the first three years, or
- has established a business that has an income of at least £5million, or
- has taken over or invested in an existing UK business and the action brought a net increase in income of at least £5 million
Notwithstanding the route to settlement, the permitted number of days a migrant can spend outside the UK in one year is still 180.
Point Based System Dependants
The most recent amendments to the Immigration Rules brought a significant change to the residence requirements for partners or dependants of Investors, Entrepreneurs and Workers. In 2016, the 180 day cap was introduced to the definition of ‘continuous residence’ of the dependants. The statement of changes announced on 7 December 2017 that the 180 day cap will now be applied when assessing residence of the main applicants as well as the main dependants. This significant change will apply to any applications submitted on or after 11 January 2018. Absence accrued prior to 11 January 2018 will not count.
This amendment will not affect those dependants who have already extended their leave to remain and are on the route to obtain settlement without having to extend their leave again.
Immigration practitioners believe that the imposition of the 180 day cap was brought about due to migrants taking advantage of the loophole, which allowed persons who would normally be in the UK as dependants to apply as main applicants. Their partners were then able to continue their business engagements overseas and at the same time, qualify for indefinite leave to remain. This will no longer be possible after 11 January 2018.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.