Exceptions To Absences Requirements For Settlement Applications

We consider here the circumstances where excessive absences can potentially be disregarded when applying for settlement following five years' continuous residence in the UK in qualifying visa categories.

Under the current law, many visa categories allow individuals to apply for settlement (also known as indefinite leave to remain or permanent residence) after five (or in some cases, three) years' continuous residence in the UK. As part of the continuous residence requirement, an applicant must normally show that they have spent no more than 180 days outside of the UK in any 12-month period throughout their time in the UK. There are, however, exceptions to this rule.

We look at the circumstances in which absences might be disregarded as part of the 180-day calculation under Appendix Continuous Residence of the Immigration Rules (which includes within its scope those applying from the Skilled Worker, Global Talent and Innovator-Founder routes among others). This does not include applications under Appendix FM (for partners of British citizens, settled persons and those who have pre-settled status). Long residence applications, where the applicant relies on ten years' lawful and continuous residence in the UK in a combination of visa categories, are not within the scope of this article as there are separate rules and transitional provisions that apply.

What types of absence from the UK are potentially permitted?

Under Appendix Continuous Residence of the Immigration Rules, absences from the UK for the following reasons can potentially be disregarded when calculating whether the applicant has spent more than 180 days outside of the UK in any 12-month period:

• Assisting with a national or international humanitarian or environmental crisis overseas – if the applicant is on a sponsored route, the sponsor must have agreed to the absence;
• Travel disruption due to external events such as natural disaster, military conflict, or pandemic – his includes COVID‑19‑related disruption to travel, which is significant because the qualifying period of continuous residence for settlement applications submitted in 2025 will go back to 2020, a time of substantial travel disruption and national lockdowns;
• Compelling and compassionate personal circumstances, including (but not limited to) the life‑threatening illness of either the applicant or a close family member or the death of a close family member – Home Office guidance instructs caseworkers to judge each case on its merits and consider factors such as whether:
  • the reason is credible, well-evidenced and outside of the applicant's control;
  • the absence was planned or in response to urgent or unexpected events; and
  • the applicant was prevented from, or delayed in, returning to the UK for reasons outside of their control; and
• Accompanying a partner on Crown service overseas – the applicant's partner must be a regular member of HM Armed Forces, an employee of the UK Government or devolved administrations, or a permanent member of the British Council.

There are also route-specific exemptions that allow the applicant to be absent from the UK for more than 180 days where they are undertaking research activity and the following criteria are met:

• Skilled Worker visa holders sponsored in a permitted occupation (generally in the "natural and social science professionals" (211) group of occupation codes) and where their sponsor has approved the overseas research; and
• Global Talent visa holders who were granted a "prestigious prize" or were endorsed by The Royal Society, The British Academy, The Royal Academy of Engineering, or UK Research and Innovation (UKRI).

Practical consideration

If an applicant is relying on a permitted exception to justify absences above 180 days in any 12-month period, the reasons the exception applies must be clearly set out in the application form and in representations made in a cover letter. Robust supporting evidence must also be submitted.

Applications of this kind are likely be deemed complex by the Home Office. This may mean they will take longer than the Home Office's standard processing time to consider (even if priority service is purchased). Travel outside the UK is not permitted while the application remains outstanding.

In the absence of sufficiently compelling evidence, the Home Office is likely to refuse the application for failing to meet the continuous residence requirement. In this scenario, there might be scope for challenging the decision by submitting an administrative review.

The scope of an administrative review is limited; the Home Office will consider whether a decision was wrong due to a 'case working error' based on the information and evidence available to the decision-maker at the time. It is not normally possible to submit new evidence at administrative review stage. If an administrative review is not appropriate or is unsuccessful, it may be possible to apply for further permission to regularise stay.

Dealing with a refusal can be stressful and costly. The best approach is of course to front-load the application with as much supporting documentation as possible to minimise the risk of receiving a negative decision in the first place.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.