A post by a young Cambridge academic refused indefinite leave to remain after spending a year abroad has triggered a viral Twitter outpouring of indignation and support – but did the Home Office get it wrong?
Today I’ve been in the UK for 10 years, 1 month, 2 weeks, 3 days. Yesterday I found out that the @UKHomeOffice decided to refuse my application for Indefinite Leave to Remain. Thread for details but basically #HostileEnvironment— Asiya Islam (@asiyaislam) November 6, 2019
Asiya Islam, a sociology PhD student, made her application under the so-called “long residence” rule. This allows people who have lived lawfully in the UK for a “continuous period” of ten years to apply for indefinite leave to remain, or settlement as it’s sometimes known.
But this rule also states that too much time outside the UK, either on a single trip or cumulatively, will “break” continuous residence. This is apparently what happened to Ms Islam.
NB: This article is not about what the rules on continuous residence should be, but rather what they are at the moment. There is a strong case for saying they should be changed. — Ed.
No allowance for overseas research?
In her Twitter post, Ms Islam explained she had lived in the UK for ten years and one month but the Home Office refused her application because she spent twelve months in India conducting fieldwork for her Cambridge PhD.
It appears that the academic relied on a recent promise by then chancellor Philip Hammond that immigration laws would be changed so “researchers will no longer be unfairly penalised for time spent overseas conducting vital fieldwork”.
In his March 2019 Spring Statement, Hammond said that research activity overseas would now count as residence in the UK for settlement application purposes. In other words, time spent outside the UK in this context would not count as absence when applying for indefinite leave to remain and so would not break continuous residence.
While many government promises have fallen by the wayside amid recent political turmoil, this is actually not one of them. The Immigration Rules were changed on 1 October 2019 to expressly state that overseas research absences will be disregarded for applicants in PhD-level occupations.
The problem for Ms Islam is that this exemption only applies to people who are applying for settlement after five years in the UK holding a Tier 2 work visa sponsored by an employer – in other words, in an entirely different category of the Immigration Rules to the ten-year long residence route.
The starting point for settlement applications by Tier 2 visa holders is that continuous residence will be broken by 180 days of absence in any consecutive 12-month period. But the recent change to paragraph 245AAA of the Rules allows longer absences where this is “linked to research purposes”, according to Home Office guidance.
“The research absence must be linked to the reason for their Tier 2 sponsorship and must have been agreed by their Sponsor”, it continues. “These details must be confirmed in writing by their Sponsor as part of the ILR application”.
In fairness to Hammond, his comments about the exemption were made in the context of remarks about Tier 2 visa holders. But the limited scope of this change may not have been obvious to those without specialist knowledge.
Excess absences in long residence applications
Ms Islam’s application for indefinite leave to remain, based on ten years of lawful residence in any combination of visa categories, relies on a different definition of “continuous residence”, which is set out at paragraph 276A of the Immigration Rules.
Paragraph 276A says that continuous residence will be broken by a single absence of more than six months or by a total of 18 months spent outside the UK during the ten-year period.
The relevant guidance explains that “for the purpose of calculating time spent outside the UK for the long residence rules, a month constitutes 30 calendar days”. This means residence will be broken either by one absence of more than 180 days or by cumulative absences of 540 days.
Unlike the Tier 2 exemption for overseas research, there is absolutely no allowance within the actual Immigration Rules for absences in excess of that.
That said, the Home Office supporting guidance does make very limited allowance for longer absences if due to “compelling or compassionate circumstances”.
Could an exception be made?
So did the Home Office ignore its own guidance when considering Ms Islam’s case? I think almost certainly not. While I have the utmost sympathy for Ms Islam personally, my professional view is her application had almost no chance of success under current Home Office policy.
The wording of the guidance implies that “compelling or compassionate circumstances” will probably arise from a single event. The caseworker must be satisfied the applicant returned to the UK as soon as reasonably possible.
In my experience, this sort of wording covers serious illness or events entirely outside the applicant’s control. By way of example, compassionate circumstances might be repeat trips outside the UK to care for a terminally ill parent. A compelling event to me suggests being physically prevented from returning to the UK, for example, because of an air-traffic control strike or unexpected hospitalisation abroad.
A helpful comparison here is with the Home Office caseworker guidance for citizenship applications, where special consideration is given to work-related absences. This expressly states that excess absences can be overlooked up to a point where these “were an unavoidable consequence of the nature of the applicant’s career” or where there are “exceptionally compelling reasons of an occupational nature”.
So while the reason for Ms Islam’s year abroad would be relevant to a theoretical citizenship application, legally speaking I cannot see that she falls within the type of exception envisioned for a long residence settlement application.
Morally speaking, it’s certainly arguable the same exemptions to the continuous residence requirements should be applied across the board regardless of the application category.
What next for Asiya Islam?
If Ms Islam’s previous visa has not yet expired then this refusal should have no impact on her status. She will be allowed to remain on the same terms as before until that visa expires.
But if her last visa expired while the indefinite leave application was under consideration, she will be given a right of appeal on human rights grounds. Alternatively, she may be able to simply renew her previous visa for the time being or apply for an alternative visa. This would undoubtedly be the safest option.
Either way, this is of little consolation to Ms Islam, for whom this will be a costly experience at best and a life-changing one at worst.