In the case of R (Nesiama & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 1369, the Court of Appeal found that “residence” in the UK means “physical presence”, such that continuous residence in an application for indefinite leave to remain may be broken by too many absences from the country, irrespective of other factors such as owning property, maintaining a home, paying taxes or other private and family connections in Britain. Absences may, therefore, prevent a person from acquiring indefinite leave to remain, even when their “home”, or “residence” on a more common sense understanding of that term, may very well be in the UK.

Continuous residence in the UK

Nesiama was about the requirement to have spent “a continuous period […] lawfully in the UK” under paragraph 245CD of the Immigration Rules. This relates to those applying for indefinite leave to remain as Tier 1 (General) migrants, a category which is now closed. But a similar wording around the need for a “continuous period” is used for qualifying for settlement in many other categories:

• Tier 1 (Exceptional Talent) in paragraph 245BF
• Tier 2 (Intra-Company Transfer) in paragraph 245GF
• Tier 2 (General) or Tier 2 (Sportsperson) in paragraph 245HF
• Tier 2 (Minister of Religion) in paragraph 245HG
• Tier 5 (Temporary Worker) in paragraph 245ZS
• Tier 1 (Entrepreneur) in table 6 of appendix A
• Tier 1 (Investor) in tables 9A and 9B of appendix A

“Continuous period”, in turn, is defined at paragraph 245AAA of the Rules. At the time of the appeal, this paragraph read

““continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where

(i) 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”.

As I will explain below, a further exception has been added with the statement of changes published on 15 June 2018.

Beyond the Point Based System, those applying for indefinite leave to remain following five years in the categories of UK Ancestry, and Representatives of an Overseas Business, must also show a continuous period lawfully in the UK.

Meaning of residence

This case turned around the definition of “residence”.

The appellants tried to argue that the wording “a period shall be considered unbroken where the applicant has not been absent from the UK for more than 180 days during any 12-month period in the continuous period” only meant that, if a person had been absent for fewer than 180 days in any 12 months, then they were considered resident. It did not mean, however, that anyone who was absent for more than 180 days did not have residence in the UK. For those applicants, Amanda Weston QC argued, “residence” should be assessed taking into account factors such as property, payment of taxes and other connections to the UK, rather than simply “physical presence”.

The Court of Appeal was unconvinced. It found that

the Explanatory Memorandum [which introduced rules with effect from 13 December 2012] makes clear that the Rules change was intended to set a maximum number of days absence from the UK.

Judge Allen of the Upper Tribunal, who had considered the case before it reached the Court of Appeal, was, therefore, right to equate “residence” with “physical presence”.

Unfair retroactivity of the rules

The second and alternative argument was that, at the time Ms Nesiama had first obtained Tier 1 leave, the Rules did not specify a limit of absences. The Secretary of State should have taken this into account when looking at the excess absences accrued by the appellant in the first years of her period in the UK. Not doing so was “unfair” and unlawful.

The Court of Appeal, although sympathetic, did not agree with this argument either.

There is nothing in the 1971 Act that requires the Secretary of State to take into account former policy, Rules or guidance in coming to a decision as to whether to grant leave to remain outside the Rules in the circumstances of this case. For him not to have done so was not arguably irrational or otherwise unlawful.

The reverse side of that coin is that there could have been no reasonable expectation on the part of the Applicant that the Secretary of State would have taken into account previous policy, even the policy as set out in the Rules and guidance that applied when the Applicant was accruing absences in the first and second years of the five year period. Such an expectation could only reasonably have arisen if it would have been irrational for the Secretary of State not to have taken that factor into account. It seems to me to have been entirely rational – and, given the enormous rate of change to Rules and guidance, entirely understandable in practice – for the Secretary of State not to have taken into account the earlier Rules and guidance, notably the Rules and guidance which applied when the absences in the first year were being accrued.

For a judgment published the day before the statement of changes of 15 June 2018, this seems quite harsh. The Secretary of State subsequently accepted that changes to the continuous residence requirement should not be applied retroactively.

To give a bit of background: on 11 January 2018, the Immigration Rules were changed so that an application for indefinite leave to remain could be refused if at any point over the five qualifying years, the 180-day limit was exceeded in any 12-month period. Before that, the 180-day limit applied to the five 12-month periods preceding the date of the application. In other words, absences went from being calculated in fixed blocks to being calculated on a rolling basis, potentially excluding many applicants from applying. This post by Joanna Hunt explains the effect of the changes in more detail.

Fast forward to 15 June, when a new statement of changes was published. Thankfully, it introduced a transitional arrangement to ensure that this new absences calculation rule does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to that date.

In other words, absences during periods of leave granted prior to 11 January 2018 are still counted in fixed blocks, while absences for periods of leave granted after 11 January 2018 will be counted on a rolling basis.

Given the Home Office’s own U-turn on this point, one could have expected the Court of Appeal to be equally “generous” and allow the appeal on that basis (although, to be fair, its judgment was published just before the changes).

Excess absences – so what?

The case of Nesiama makes it clear that, for applicants who must show that they have spent a “continuous period […] lawfully in the UK” when applying for indefinite leave to remain, absences should not exceed the maximum allowed of 180 days a year. The exact meaning of “a year” has, as discussed above, been chopped and changed recently, but the basic point remains that prolonged absence from the UK can cause applicants trouble and they should be aware of the issue.

The only exceptions remain:

1. absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas (which do not count towards the 180 days) or
2. absences due to “serious or compelling reasons”

Where one’s home, taxes, and private and family connections are is not a factor in establishing continuing presence, although those can always be raised to ask the Secretary of State to exercise discretion and grant leave outside the rules.