How do you calculate the continuous residence requirements for indefinite leave to remain applications?
Indefinite leave to remain is an immigration status granted to an individual who does not hold the right of abode in the United Kingdom but has been admitted to the country without any time limit on their permission to stay and is free to take up employment, engage in business, self-employment, or study.
A crucial aspect of an application for indefinite leave to remain is the continuous residence requirement. This requirement and its parameters are often misunderstood by applicants and this article will showcase that the requirement is not as strictly applied as you might expect.
What is the continuous residence requirement?
Applicants for indefinite leave to remain must demonstrate a specified period of lawful, continuous residence to be eligible for such an application, where the required period will depend on the visa that they currently hold (the “qualifying period”). For instance, Skilled Worker visa holders will need to show five years of continuous residence in the UK.
In order to meet the continuous residence requirement, the applicant must not have been outside the UK for more than 180 days in any 12-month period during their qualifying period, unless the absences are for permitted reasons, such as serious illness of the applicant or a close relative.
How is the continuous residence requirement calculated?
Although applicants often assume that they might only become eligible for indefinite leave to remain once they have reached the five-year or 10-year anniversary of their continuous residence in the UK to the exact date, the immigration rules allow for some leeway in the calculation of the applicant’s qualifying period rather than imposing a strict time limit across the board.
This means, for instance, that an individual applying for indefinite leave to remain on the basis of their continuous residence as a Skilled Worker who first entered the UK on 1 January 2020 would not necessarily need to wait until 1 January 2025 in order to submit their application.
The immigration rules provide that the most beneficial of the options listed below must be applied to determine when the applicant’s qualifying period starts:
1. The date of application
An individual may count their qualifying period backwards from the date of application. For instance, where an individual is applying on 15 August 2024 on the basis of their Skilled Worker continuous residence, they may count back five years to 15 August 2019 and must not have exceeded 180 days of absence in any 12-month period within those five years.
2. Any date up to 28 days after the date of application
An individual may count their qualifying period backwards from any date up to 28 days after the date of application. For instance, where an individual took a two-week holiday abroad starting from 7 August 2019 and wishes to submit their application on 7 August 2024 on the basis of their Skilled Worker continuous residence, the applicant would be able to calculate their period of continuous residence from any date up to 28 days after 7 August 2024, such as 28 August 2024, and exclude the initial period of absence from their qualifying period if this is a point of concern. In another scenario, where an individual started residing in the UK on 7 August 2019, they would benefit from this by being permitted to submit their application from as early as 10 July 2024 and thus avoiding the risk of becoming an overstayer.
3. The date of decision
An individual may count their qualifying period backwards from the date of the indefinite leave to remain application decision. Where an individual submits an application on a standard basis, a decision may take up to six months to be made. As a result, the qualifying period could be counted back from the date of the decision if this is the most advantageous to the applicant.
Our recommendations
An application for indefinite leave to remain is a complicated process and can be stressful to navigate.
The immigration team at Irwin Mitchell has extensive experience dealing with Indefinite Leave to Remain applications and will help you through every step of the process. Please do not hesitate to get in touch with Mandeep Khroud, Partner within our immigration team, should you need our assistance.
