On July 9, 2024, the Home Office clarified the 548-day absence rules for ILR on the Long Residence. Unfortunately, for certain applicants, the much-anticipated changes to Home Office Guidance are unfavourable. According to the new guidance, the maximum accumulative number of absent days for any part of a long residence ILR ten-year period prior to April 11, 2024, is still 548 days.

Permitted absences from the UK for Long Residence ILR application

The applicant must have met the continuous residence requirement for the entirety of the qualifying period.

A significant and positive change is the new method for calculating absences in a 10-year-long residence ILR application. Historically, the ten-year route allowed for absences totalling 548 days, but this will no longer be the case moving forward.

This modification is likely to be beneficial for individuals who arrived in the UK as young students and frequently have extended holidays as a result of their family members living abroad.

Any period spent outside the UK will not count towards the period of absence where the absence was for any of the following reasons:

(a) the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if on a sponsored route their sponsor agreed to the absence for that purpose; or

(b) travel disruption due to natural disaster, military conflict or pandemic; or

(c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, the life-threatening illness or death of a close family member; or

(d) research activity undertaken by a Skilled Worker who was approved by their sponsor and where the applicant was sponsored for a job in one of the following SOC 2020 occupation codes:

• 2111 Chemical scientists
• 2112 Biological scientists
• 2113 Biochemists and biomedical scientists
• 2114 Physical scientists
• 2115 Social and humanities scientists
• 2119 Natural and social science professionals not elsewhere classified
• 2161 Research and development (R&D) managers
• 2162 Other researchers, unspecified discipline
• 2311 Higher education teaching professionals; or

(e) research activity is undertaken by a person on the Global Talent route who was endorsed by:

• The Royal Society; or
• The British Academy; or
• The Royal Academy of Engineering; or
• UKRI; or

(f) research activity undertaken by a person on the Global Talent route who qualified on the basis of a prize listed in Prestigious Prizes; or

(g) for an applicant under Settlement Family Life, absences for work, study or supporting family overseas, so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence; or

(h) where the applicant’s partner is absent from the UK on Crown service as:

• a regular member of HM Armed Forces (the Royal Navy, the Royal Marines, the Army (including the Brigade of Gurkhas) and the Royal Air Force); or
• an employee of the UK Government, a Northern Ireland department, the Scottish Administration or the Welsh Government; or
• a permanent member of the British Council, and the applicant accompanies them overseas.

Additionally, Continuous Residence clarifies that time spent in the Channel Islands or the Isle of Man does not count as time spent in the UK.

Calculating absence and qualifying exemption of absence

When calculating your stay abroad, the days you leave and return home are not included in the total calculation. Only the total days you spend outside the UK are taken into account.

The updated rules are considerably more flexible regarding the permissible number of absences before the continuity of leave is broken. A break in continuous residence will essentially reset the time period. The basic rule is that one must not exceed 180 days of absences within a consecutive 12-month period unless one of the exemptions is applicable.

The days of departure and return are not included in the total count; only whole days spent outside the UK are considered.

The updated rules cover certain situations that may qualify for the "compelling and compassionate personal circumstances" exemption. Examples include but are not limited to, when either the applicant or a close family member has a life-threatening illness. The Home Office is expecting to receive evidence of this, such as medical certificates and a letter that explains the circumstances.

Home Office will consider the following when determining whether additional circumstances qualify for this exemption:

• whether the reason is credible and evidenced
• whether it was in the applicant’s control
• was the absence planned, for example, not in response to urgent or
• unexpected events
• was the applicant prevented from returning to the UK, or did they experience a significant delay outside their control preventing them from returning to the UK

Transitional provisions

The transitional provisions in the new rules are different from the previous long residence rules.

These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024.

This means that:

• Any single absences started before 11 April 2024 must be no longer than 184 days.
• A 10-year period completed before 11 April 2024 must not have total absences of more than 548 days – for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit.
• From 11 April 2024, the applicant must not have been outside the UK for more than 180 days in any 12-month period

Where the 10-year period finishes prior to April 11, 2024, this is straightforward. The previous rules are applicable for the entire 10-year period: the total number of absences must not exceed 548, and no single absence may exceed 184 days. It is similarly straightforward for individuals whose 10-year period commences after this date: the new rules (180 days in any given 12 months) are the only ones that apply.

If some of the ten years start before April 11, 2024, and some start after, things get a little more complicated. The 548-day rule is not applicable if the application is using time after April 11, 2024, to finish up for the 10 years. This is applicable whether the leave was taken before or after this date. However, the previous rule about absences being less than 184 days (rather than the new "180 days in a year" rule) can still be used for absences that started before this date.

What do the changes to the 548-day rule mean for long-term residence ILR applications?

For any time periods used in a long-term residence application that start before April 11, 2024, gaps of 548 days or more and 184 days in consecutive days will break the continuity. This remains the stricter approach of the old Rules for long residence ILR applications compared to other ways to settle, which say that absences should not exceed more than 180 days in a rolling 12-month time.

Therefore, if applicants have absences that last longer than 548 days before April 11, 2024, they will have the same options as before: they can either wait until these absences are not within the ten-year period, or they may provide the evidence of an adequate reason why time spent outside of the UK would not count towards absences.

For many young students and people who have been absent for a long time, the new rules for Indefinite Leave to Remain will make the process of settling in a lot easier. It is important to note that the changes also disadvantage those who had accumulated ten years of residence under the previous rules but had not yet submitted an application.

For expert advice and assistance in relation to an ILR application based on 10 years of continuous and lawful long residence, contact us on 020 3865 6219 or leave a message.