Earlier this month, the Home Office issued guidance on how to calculate a period of continuous residence in the UK when making an application for Indefinite Leave to Remain in a working category.

The requirement in the Immigration Rules is that in order to qualify for settlement in a working category, an individual must have spent a continuous period of five years' lawful residence in the UK.

The guidance has been brought in following a decision in the Upper Tribunal of the Immigration and Asylum Chamber in the case BD (work permit – "continuous period") Nigeria [2010].

The case concerned a Nigerian national whose application for settlement on the basis of five years' residence as a work permit holder was refused on the basis that he had not had continuous leave of five years as more than half of his period in the UK under the work permit was spent posted abroad with his UK based employer.

Further, the refusal letter found that he did not qualify for indefinite leave on the basis of 10 years' lawful residence, as he had spent a total of more than 18 months absent from the UK during that period and therefore he did not meet the requirements of the immigration rules relating to settlement on the basis of long residence.

The case was refused on appeal and the applicant went on to appeal to the Upper Tier Tribunal.

The key points considered by the Senior Immigration Judge were whether the required continuous period could include time spent abroad at the direction of a work permit holder's employer and how, in the absence of any guidance, the discretion to waive breaks in the continuity of five years' residence should be exercised in the present case.

The Judge found to be of particular relevance the reason for the absence and the strength of the persons' ties to the UK, as shown in other ways. In the present case, the applicant's earnings were all paid into his UK bank account and he paid UK tax and national insurance. Further, the absences were all required by his employer, a British company, and he had at all times retained his base in the UK.

The Judge allowed the appeal on the basis of the strength of the appellant's connections to the UK, regardless of the absences, stating that "he was domiciled in the UK for tax purposes and would seem to have established a domicile of choice for other purposes. He had clearly made this country his home".

More importantly, the Judge distinguished applications for settlement in working categories from the applications for settlement in other categories on the basis that the immigration rule relating to settlement in other categories clearly states that continuous residence is broken by an absence of more than 18 months, whereas there is no such clarification in the rule relating to working categories. The Judge goes on to note that the reason for this distinction in the rules, is that working categories automatically lead to settlement, whereas non-working categories do not, and it is all the more important for applicants to demonstrate their commitment to the UK through their period of residence here.

The guidance brought in by the Home Office brings into effect elements of the BD judgment, although it does not fully reflect the spirit of the judgment. In particular, the guidance allows 'short absences' for holidays consistent with annual paid leave entitlements and for business trips consistent with maintaining employment or self-employment in the UK.

Although this had not been contained within the guidance previously, it was common practice by legal advisers to request the Home Office to discount these from annual absences in all categories of settlement.

However BD dealt with considerable periods of absence, of up to six months per year in total, where despite these significant absences, the appellant was still considered to have continuous residence as a result of his strong ties to the UK throughout the relevant period.

In contrast, the guidance states that where there have been significant absences abroad, these may be permitted where they are to do with the applicant's employment or business in the UK, but that no single absence abroad should be for more than three months at a time and they must not total more than six months. If this guidance were strictly followed in the BD case, again there would be a danger of the application being refused by the caseworker on the basis that his absences were considerably higher than a total of six months over the five year period and that under the guidance his continuous period of leave was broken.

In cases similar to those of BD, where the applicant is based in the UK and employed by a UK company, but the global nature of his job requires him to travel for long periods outside the UK, there is a danger that the application for settlement in a working category would be refused, whereas clearly under the BD case an applicant would have strong grounds for settlement being granted. Any person who wishes to apply for settlement in a working category and who has significant work related absences outside the UK may benefit from the principles established in this case and should consult an immigration adviser.

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