To settle in the UK permanently, visa holders must meet the eligibility requirements for UK indefinite leave to remain.
One of the more challenging requirements is for the ILR applicant to show that have continually resided in the UK for the relevant qualifying period. New rules were published in this area at the end of 2020 under “Appendix Continuous Residence”. In this guide, we detail the rules on meeting the continuous residence requirement and the potential pitfalls relating to excessive absences.
What is Appendix Continuous Residence?
When applying for settlement, or indefinite leave to remain (ILR), an applicant must meet various validity, suitability and eligibility requirements, including a qualifying residence requirement.
Appendix Continuous Residence sets out (and consolidates) the supplementary rules applicable to several different routes relating to the period during which a person must have continuously lived in the UK to be eligible for settlement, including:
- How the continuous residence requirement is met
- Absences from the UK
- Breaking continuous residence
- What is meant by lawful presence
- Calculating the continuous residence period, and
- Continuous residence for dependants.
When does Appendix Continuous Residence apply?
Appendix Continuous Residence of the UK’s Immigration Rules came into effect on 1 December 2020 for settlement applications under various different routes including:
- Skilled Worker (and Tier 2 (General))
- T2 Minister of Religion (and Tier 2 (Minister of Religion))
- T2 Sportsperson (and Tier 2 (Sportsperson))
- Representative of an Overseas Business (and Media Representative and Sole Representative)
- UK Ancestry
- Global Talent (and Tier 1 (Exceptional Talent))
- Innovator
- T5 (Temporary Worker) International Agreement Worker (Private Servant in a Diplomatic Household)
- Dependants and Child Dependants of the routes listed above, except for UK Ancestry and Representative of an Overseas Business where there is no qualifying period of continuous residence for dependants.
Appendix Continuous Residence was introduced, together with various other changes, as part of the post-Brexit reform of the UK’s immigration system. It is worth noting that the names of some of the routes have changed. For example, the Skilled Worker route includes a person with permission either under Appendix Skilled Worker, or a skilled migrant under the old Tier 2 (General) rules in force before 1 December 2020.
What is the continuous residence requirement?
To be eligible for settlement, an applicant must have spent a specified number of years in the UK, where the length required will depend on the route applied under. The continuous residence requirement will be met if the applicant has spent the qualifying period residing lawfully in the UK as per the requirements and restrictions of their visa category.
For example, if applying under the Skilled Worker route, the applicant must have spent a period of 5 years in the UK under any one of a number of routes, although their most recent permission must have been under either the Skilled Worker or Tier 2 (General) route. As part of the qualifying period requirement for settlement as a Skilled Worker, the applicant must also meet the continuous residence requirement as set out in Appendix Continuous Residence.
This means that the applicant must not have spent more than 180 days outside the UK during any rolling12-month period, ending on the same date of the year as the date of the application for settlement (for time spent on a visa granted before 11 January 2018), or in any 12 month rolling period (for time spent on a visa granted after 11 January 2018). The way that UK Visas & Immigration (UKVI) will calculate the number of absences will therefore depend on whether the applicant’s visa was granted before or after this date.
There are also certain exceptions to the 180-day absence rule, where there are periods of time outside the UK that will not be counted when calculating the total number of days. These exceptions apply in the context of an application involving any periods outside the UK both pre- and post-11 January 2018 where the absence is for any one of the following reasons:
- the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if applicable, their sponsor agreed to the absence for that purpose;
- travel disruption due to natural disaster, military conflict or pandemic (including the COVID-19 pandemic);
compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; - sponsor-approved research activity undertaken by a Skilled Worker and where the applicant was sponsored for a job in one various specified occupation codes, including chemical scientists; biological scientists and biochemists; physical scientists; social and humanities scientists; natural and social science professionals not elsewhere classified; research and development managers; and higher education teaching professionals;
- research activity undertaken by a person on the Global Talent route who was endorsed by either The Royal Society; The British Academy; The Royal Academy of Engineering; or UK Research and Innovation (UKRI).
In the context of an ILR application, time spent lawfully in either the Channel Islands or Isle of Man will be treated as time spent in the UK, provided the applicant’s most recent grant of permission was in the UK.
How is continuous residence broken?
As the qualifying period for settlement includes a continuous residence requirement, an applicant must not exceed the acceptable level of absences from the UK. An applicant’s continuous residence period will therefore be broken if the applicant is absent from the UK for longer than the permissible 180 days, and none of the exceptions set out above apply.
The continuous residence period will also be broken whilst in the UK if either:
- the applicant is convicted of an offence and sentenced to a period of imprisonment (unless it is a suspended sentence) or directed to be detained in an institution other than a prison;
- the applicant is subject to a deportation order, exclusion order or exclusion direction;
- the applicant is subject to removal directions under section 10 of the Immigration and Asylum Act 1999.
Equally, the period of continuous residence will be broken where the applicant does not have permission to be in the UK, unless:
- they made a successful application for permission to stay under the circumstances set out in paragraph 39E of Part 1 of the rules (this provides limited cases where overstaying will be disregarded: see discussion on the meaning of lawful presence below); or
- they had permission when they left the UK, applied for entry clearance before that permission expired, or within 14 days of that permission expiring, and that application for entry clearance was successful.
Finally, any period without permission which occurred before the applicant made a successful visa application before 24 November 2016 will break the continuous residence period unless the applicant:
- made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired, or
had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful. - In cases where the applicant did not have permission to be in the UK but one of the relevant rules here apply, the periods of time where the applicant did not have permission will not count when calculating the continuous residence period.
What is ‘lawful presence’?
It is fundamental to the continuous residence requirement that the applicant was in the UK lawfully, where the circumstances in which an applicant will not satisfy this requirement are expressly set out under Appendix Continuous Residence. This provides that the applicant will not be regarded as lawfully present in the UK:
- during any period of imprisonment or detention where the applicant has been convicted of an offence and sentenced to a period of imprisonment (unless it is a suspended sentence) or directed to be detained in an institution other than a prison; or
- during any period where they required permission and did not have it, unless paragraph 39E of the rules applied.
Paragraph 39E of the rules provides three scenarios where overstaying will be disregarded.
First, overstaying will be disregarded if the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why it could not be made in-time, provided that the application is made within 14 days of the expiry of leave.
Second, overstaying will be disregarded where the applicant previously made an in-time application which was refused, and the current application was made within 14 days of any one of the following:
- the refusal of the previous application for leave;
- the expiry of any leave extended by section 3C of the Immigration Act 1971;
- the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
- any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Third, where the period overstaying was between 24 January and 31 August 2020 there will be no future adverse immigration consequences if a migrant did not make an application to regularise their stay during this timeframe, thereby providing migrants whose leave has expired during this period with a COVID-19 concession.
In relation to the third (and recently introduced amendment to paragraph 39E), it is worth noting that if an overstayer during the pandemic grace period has not subsequently applied to regularise their stay or submitted a request for an exceptional assurance (where they have been unable to leave the UK), they will no longer be classed under this provision as being in the UK on a lawful basis.
The specific provisions on ’lawful presence’ under Appendix Continuous Residence also provide that where an applicant is classed as breaking their continuous residence period (see the discussion on how continuous residence is broken above), they will not be regarded as continuously resident for any period during which those circumstances are applicable, and the general exceptions to the 180-day absence limit will not apply.
How to calculate continuous residence
The continuous residence period requiring the applicant not to have been outside the UK for more than 180 days in any 12-month rolling period will need to be calculated by counting back from whichever of the following dates is the most beneficial to the applicant:
- the date of application;
- any date up to 28 days after the date of application;
- the date of decision; or
- for a person seeking settlement on the UK Ancestry route, the date of their last grant of permission.
Appendix Continuous Residence & Dependants
Where the applicant’s partner or parent, on whom they are dependent, was absent for one of the exceptions to the 180-day limit, for example, because of travel disruption due to the pandemic, provision is made under Appendix Continuous Residence to discount that period of absence when calculating the dependant’s continuous residence period.
Need assistance?
DavidsonMorris are specialist UK immigration lawyers. Employer-sponsors are advised to support their sponsored visa workers through the ILR application process, to ensure they retain their status and can continue to live and work in the UK lawfully. We advise employers and their sponsored workers on options to enter, remain and settle in the UK, including guidance on eligibility and making the Home Office application. For specialist advice, speak to us.
Continuous residence FAQs
What is Appendix Continuous Residence?
Appendix Continuous Residence sets out the supplementary rules relating to the period during which a person must have continuously lived in the UK to be eligible for settlement, from how this is calculated to what absences from the UK will not be classed as breaking the requisite qualifying period of residence for any applicable route.
How long do you need to have lived in the UK to apply for ILR?
To apply for ILR (Indefinite Leave to Remain) an applicant will need to have lived in the UK for a specified number of years, depending on the route under which they are applying. If applying as a Skilled Worker, they will need to show a continuous period of 5 years in the UK under any one of a number of routes, although their most recent permission must have been in either the Skilled Worker or Tier 2 (General) route.
How long can you be absent without breaking continuous residence?
The period of time that you can be absent from the UK without breaking continuous residence is typically no more than 180 days in any 12-month period, although the way that this calculated will depend on whether the applicant’s visa was granted before or after the 11 January 2018 when the calculation rules changed. There are also exceptions to the 180-day rule, for example, if the absence was because of travel disruption due to COVID-19.
Last updated: 27 February 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
