UK Visas and Immigration updated Guidance and the Immigration Rules: Points-based system Tier 2
The UKVI updated the Tier 2 Guidance and the Immigration Rules for the points-based system on 11th January 2018.
The following change in the rules are applicable for those applying for indefinite leave to remain under the points-based system (Tier 1 and Tier 2 applicants).
(i) Removal of the 60-day rule when calculating continuous period in the UK
The updated guidance removes the Tier 2 rule covering gaps in employment of 60 days. The guidance provides that;
“An amendment is being made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.”
A leave can be curtailed by the Home Office to 60 days starting from the date of the decision to curtail leave is made. This implies that the migrant worker effectively has 60 days from the date of deemed service to make an application for leave in another category or find an alternative sponsor.
The above removal means that as long as the migrant worker is able to find an alternate sponsor or apply under different category within the 60 days period then the continuous residence is not considered broken for the purposes of indefinite leave to remain application.
It is worth noting that the 60 days curtailed leave is distinguished from the 60 days in the Guidance which is 60 days from the end of your employment date which is logged on the Sponsorship Management System. Therefore, the worker has 60 days to find another job or apply under another category from the curtailment letter date.
(ii) Changes to Immigration Rules 245AAA (a)(i) Calculating the 5-year continuous period in the UK
The recent changes to the Immigration Rules states that in order to eligible for indefinite leave to remain under the points-based system;
‘’ the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;’’
This indicates that the Home Office will take a harsher approach when calculating the 180 days absences as they can take any consecutive 12 months period within the 5-year period.
– Old Rules: If your qualifying date for indefinite leave to remain is 1st Jan 2018, under the previous rules, the Home Office would have calculated the absences from 1st Jan 2018 to 1st Jan 2017, 1st Jan 2017 to 1st Jan 2016, 1st Jan 2016 to 1st Jan 2015 etc.
– New Rules: If your qualifying date for indefinite leave to remain is 1st Jan 2018, under the current rules, the Home Office can take any consecutive 12-month period during the 5 years.
For more information on this change, please refer to our previous article: https://bararassociates.com/updated-guidance-indefinite-leave-remain-calculating-continuous-period-uk/
If you have any problems calculating the continuous residence or require further advice please do not hesitate to contact us.