16 August 2019

Continuation of lawful leave during absences from the UK

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The continuous period is only maintained in certain circumstances. The relevant rules you must apply depend on the Immigration Rules in place at the time the break occurred.

Pre 24 November 2016

The continuous period is maintained if the applicant either:

  • leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance
  • leaves the UK with valid leave and re-enters the UK whilst that leave remains valid

If the applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken, and leave is not aggregated.

On or after 24 November 2016

The continuous period is maintained if the applicant either:

  • leaves the UK with valid leave, applies for entry clearance before their leave expires, is granted and re-enters the UK using that entry clearance
  • applies for new entry clearance within 14 days of their leave expiry date, one of the circumstances below applies, their application is granted, and they re-enter the UK using that entry clearance

The circumstances are that:

  • there was a good reason beyond the control of the applicant or their representative why the application could not be made in time
  • the application was made following the refusal of an in-time application and within 14 days of:
  • the refusal of the previous in-time application
  • the expiry of any leave extended by section 3C of the Immigration Act 1971 (please note that 3C leave lapses when an applicant leaves the UK)
  • the expiry of the time-limit for making an in-time application for administrative application for administrative review or appeal (where applicable)
  • any administrative review or appeal being concluded, withdrawn, abandoned or lapsing

Where an applicant has had a break in their leave while outside of the UK, the entry clearance officer is unlikely to have considered the reason, as any break would be irrelevant to the entry clearance application. As a result, you must consider the reason as part of the ILR application. The SET(O) form requests that migrants provide evidence demonstrating why previous applications were submitted while they did not have valid leave. Each break must be decided on its merits. There is further information on this type of consideration in the overstayer guidance.

If an applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 14 days after their previous leave expires, for any reason, the continuous period is broken, and leave is not aggregated. The continuous period would also be broken where the gap is within 14 days, but you do not consider the reasons provided to be sufficiently compelling.

Breaks of leave and allowable absences

For any acceptable breaks of leave, the period spent outside of the UK will count towards the 180 days allowable absence. This includes any time:

  • while their leave remains valid
  • after the expiry of their leave
  • while the entry clearance application was under consideration
  • before they entered the UK, once entry clearance had been granted

Exceptional cases

Absences of more than 180 days in a 12-month period before the date of application (in all categories) will mean the continuous period has been broken. However, you may consider a grant of ILR if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

Serious or compelling reasons will vary but can include:

  • serious illness of the applicant or a close relative
  • a conflict
  • a natural disaster, for example, volcanic eruption or tsunami

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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