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Vanessa Beazley

Newland Chase

Immigration Consultant

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Blog: Discretion denied – The implications of change to indefinite leave to remain rules


Before launching into this article, we’d like to wish all our readers a very Happy New Year! We hope that 2013 brings you all success and thank you for following the Newland Chase blog throughout the last year. 

As ever, we encourage you to get involved and comment below with your own thoughts and experiences on the topics raised in the blog. And now, to our first post of 2013…

You may recall that some weeks back in November 2012 we posted a blog which discussed the 13th December 2012 changes to the immigration rules, including amendments to the absences rules for Indefinite Leave to Remain (ILR) applications, new guidance on the ‘cooling off period’ and several other changes. 
We titled the blog post ‘Good News for Tier 2 Sponsors and Migrants’ because it seemed as though the rules being introduced would actually make the UK immigration process, including settlement, a slightly less complex affair for highly skilled migrants who seek to work and live here.
However, it appears that to some extent we may have been slightly optimistic in our summation of the new rules, although it would have been difficult to predict that they would take effect in this way. 
This post will look at the new rules regarding absences in ILR applications and examine whether they actually help or hinder migrants who have accrued excessive absences for legitimate employment or business purposes.
The old rules  – discretion allowed
As many of our readers will know, in order to qualify for ILR, migrants are required to spend five years continuously in the UK in a qualifying category.  
Previously, it was specified in the relevant UKBA guidance that migrants were allowed up to 180 days absence from the UK across this five year period, and up to 90 days absence in any one period.
Under the old rules it was possible, when assessing whether the five year continuous residence period was satisfied, to request that UKBA discount short absences abroad consistent with paid annual leave or business trips, along with absences for compelling compassionate reasons. 
We have handled cases before the recent rule change where a migrant has accrued a large number of absences, as many as four or five hundred across the five year period. 
However, through providing evidence of their business activities, any exceptional circumstances and their ties to the UK, it has been possible to prove to a high enough standard that the UK is indeed the home of the migrant in question and he or she deserves to be awarded settlement. 
Substantive requirements
There was clearly a certain amount of discretion afforded to UKBA caseworkers when deciding ILR applications under the old rules.
It is our view that this is the correct approach to take, because there will always be cases where a migrant does not meet the substantive requirements, but they have genuine and compelling reasons which must be taken into account when assessing their application.  
An Offshore and Subsea Engineer, for example, who is working for a multi-national oil and gas company in one of the roles on the Government’s approved Shortage Occupation List, may be expected to travel abroad and work on various projects outside the UK. 
Oil and gas projects regularly overrun due to delays which are not the fault of the Engineer, but mean that more time must be spent outside the UK until completion of the work. 
In these circumstances, if the Engineer in question accrues more absences than are allowed by the Immigration Rules, is it fair to refuse to grant settlement in his or her adopted country, the UK?
We think that this would be unduly harsh, discriminatory and we approved the discretionary aspect of ILR applications under the previous Rules, which made allowance for these situations.
The new rules – discretion denied?
As we reported previously, the rules which came into force on the 13th December state that absences of up to 180 days in each 12 month period within the qualifying five year period can be discounted provided that, for Tier 2 migrants, the absences are connected to the applicant’s sponsored or permitted employment. 
The rules for Tier 1 migrants differ slightly, for example, if a Tier 1 (General) migrant accrues absences of up to 180 days per year it must be proved that these were for reasons connected with their purpose for being in the UK or for serious or compelling compassionate reasons.
Initially it seemed as though this change would be beneficial, particularly for Tier 2 migrants who have been sent abroad on assignment by their sponsoring company. 
The news that Tier 2 visa holders can spend up to 180 days a year working out of the UK seemed to be an acknowledgment of the realities faced by those employed in occupations such as the oil, gas and construction industries.
However, what of those migrants who have accrued over 180 days absence from the UK in one or several of their five years spent in the Tier 2 visa category? Would the same discretion apply as previously?
We have been instructed by several individuals recently who hoped to apply for settlement but have accumulated more than 180 days spent out of the UK. The UKBA Guidance states that:
Troubling news
“Absences of more than 180 days in each consecutive 12 month period preceding the date of application (in all categories) will mean the continuous period has been broken. However, consideration may still be given to granting indefinite leave to remain (ILR) outside the rules if evidence is provided to show the excessive absence was due to serious or compelling compassionate reasons…
"Absences in excess of 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional.”
The policy guidance does not appear to provide for discretion to be exercised at all, even outside the rules, where there are absences in excess of 180 days for employment or economic activity reasons.
We approached the UKBA policy team directly for clarification of this and they confirmed that this is correct, stating that excessive absences due to employment will not be considered exceptional and that cases in this category which are submitted to a Public Enquiry Office will not be considered. 
Therefore it appears that regardless of the circumstances, any applicant in this situation will be deemed to have broken the five year qualifying period for ILR and this is clearly very troubling news. When advising clients of the effects of the new Rules, we have found that they are understandably extremely upset and frustrated. 
Our clients have often studied in the UK and following graduation taken up a position in an occupation, such as engineering, where there is a shortage of UK nationals to fill these roles.
Unnecessarily harsh
The restriction on the level of permitted absences will cause issues with employers as Tier 2 migrants will have to turn down overseas assignments which in turn may affect important projects.
Our clients feel that they have contributed significantly to the UK in terms of student fees, visa fees and taxes and have done everything possible to meet the requirements of the rules, including negotiating with employers to avoid overseas work wherever possible.
It appears as though the seemingly more generous policy is detracting from the fact that discretion in ILR cases involving excessive absences for employment reasons has been removed.
We feel that the new provisions are unnecessarily harsh because absences relating to employment of over 180 days per year are regularly required for genuine business reasons by global employers in particular in the industries we have mentioned.
The new rules will likely mean an increase in the number of cases which go to appeal and we wonder how this is going to affect future legislation. We will of course continue to monitor the situation and provide any updates that we receive.
Have you been affected by the new rules? What are your experiences? Please leave your views in the comments box below, but for specific enquiries feel free to contact or call us on 0207 001 2121.

Vanessa Beazley is immigration consultant at specialist immigration law firm, Newland Chase.

We welcome any and all contributions from the community, so please feel free to share your views and opinions with us, your colleagues and peers via our blogs section.

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Immigration Consultant

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