10-year long residence for getting Indefinite Leave to Remain: limit of absences extended to 548 days

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) – in the case of Chang (paragraph 276A(a)(v); 18 months) [2021] UKUT 65 (IAC) – looked at how the Home Office should be interpreting this rule.

In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time.

The appellant in this case, Mona Chang, had come to the UK as a child on 12 January 2009. She had completed her education in the UK, returning to Hong Kong to visit her family.

She applied for indefinite leave to remain on the grounds of long residence and was refused on the basis that she had been absent from the UK for 543 days during the qualifying period of 10 years between her arrival and application. The First Tier Tribunal Judge ruled that since the Home Office guidance stated that one month “constitutes 30 calendar days”, when multiplied by 18 for the maximum limit of months, the overall absences must not be over 540 days.

Upper Tribunal Judge Rintoul ultimately disagreed, allowing the appeal. 

Judge Rintoul first acknowledged that “month” is not defined in the Immigration Rules, and can only mean a calendar month in accordance with The Interpretation Act 1978. 

He then discussed how since the number of days varies depending on the month, counting up days of absences to see whether it reaches a maximum amount of months cannot be easily determined when considering it cumulatively: “[this] is problematic when, as here, the rules are intending to set a maximum period of absence, made up from smaller, shorter periods because the number of days in a period of months will vary depending on when the day on the year on which the count is started”.

Judge Rintoul underlined the importance of interpreting Immigration Rules using common sense, recognising that “in everyday usage, 18 months means a year and a half, rather than a collection of months selected at random. Any year has either 365 or 366 days. Similarly, any half-year has either 182.5 or 183 days. As leap-years cannot follow each other, then a year and a half is either 547.5, 548 or 548.5 days”. 

The half figures are then rounded to the nearest whole number to conclude that 548 days is equivalent to 18 months.

Therefore, the Upper Tribunal ruled that 18 months is 548 days and that the Home Office guidance was wrong.

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