Covid-19 Absences & Indefinite Leave to Remain

Recently at LF Legal, we assisted a client with their successful application for Indefinite Leave to Remain in the UK (“ILR”). For many, these applications can be difficult due to the strict requirements concerning the length of time an applicant is allowed to remain outside of the UK in the previous five or ten years.

In a post-COVID-19 world, it is important for practitioners to understand how absences caused by COVID-related disruption and international travel restrictions can be excluded from these requirements – for many potential applicants, the exemption of such periods may be difference between refusal and granting.

The Application

Our client had lived here in the UK for nearly seven years, five of which had been spent as a Skilled Worker, meaning she was now eligible for settlement.

Her application was complicated, however, by extensive absences from the UK taken during the period of COVID-19 travel restrictions. These absences meant that the “continuous residence” requirement (at paragraph SW22.1 of Appendix Skilled Worker to the Immigration Rules) was not met – in the relevant five-year period, our client had spent too long outside of the UK.

However, recent additions to the Immigration Rules (specifically, Appendix Continuous Residence) allow for exemptions in just these circumstances. Paragraph CR2.3(b) allows for periods of absence to be disregarded by the decision-maker where they are caused by “travel disruption due to natural disaster, military conflict or pandemic”.

In our client’s case, her extended absence from the UK occurred due to border closures whilst she was away attending a work trip in her country of origin. Originally intending to only stay for a few weeks, she was ultimately absent from the UK for several months, and on multiple occasions, her attempts to return were thwarted by flight cancellations and extensions of the border closure period.

It is important to note, then, that although the initial departure was freely made by our client, the extent of her absence was not. Other clients have struggled to see the same success, as in their applications the Home Office found that the absences were at their own initiative, and the length of time out of the UK was not forced upon the applicant in the same way.

This indicates, unsurprisingly, that the CR2.3(b) exemption cannot be used as a blanket excuse for any and all absences in the COVID-19 period. Rather, it is important to make clear in the ILR application that the absences were forced upon the applicant; that they did not choose to stay out of the UK for as long as they did.

In the application paperwork we prepared, it was made clear that the extended absence was not the intention of our client and that the exemption at CR2.3 should be applied. The Home Office agreed, and our client is now happily settled in the UK.

The same client is now looking forward to applying for British citizenship this time next year, and we anticipate needing to put forward similar arguments there. Being a citizenship application, the specific exemptions provided in the Immigration Rules will not be available. Nonetheless, the same basis of argument can be advanced, appealing instead to the Secretary of State’s discretion to allow exemptions to requirements, as defined in Schedule 1 of the British Nationality Act 1981.

Conclusion

In that period of COVID-19 disruption, sure-fire decision-making and long-term planning was difficult. Rules were changed at short-notice, and international travel became, at best, deeply unpredictable. In such circumstances, it is not surprising that many potential applicants for ILR ended up stranded or absent from the UK for longer than they intended or expected.

However, our client’s recent experience shows that all is not lost. To the contrary, specific exemptions are available, provided the ILR application paperwork argues the point sufficiently.

All of our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

– Luke Hollway

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