Guidance

The guidance on absences challenged by Gherson and Co.

The Immigration Rules require that those applying for ILR should spend a "continuous period of 5 years in the UK". The Home Office's unpublished guidance, written when the requirement was four, not five years, interprets this very strictly. Following the Gherson and Co challenge it was withdrawn as far as investors were concerned, and is still being reconsidered for the other categories.

The unpublished instruction challenged by Gherson and Co. read as follows:

CALCULATION OF THE FOUR YEAR PERIOD FOR SETTLEMENT

In assessing whether or not an applicant has fulfilled the requirement to have spent 4 years in continuous residence in the same capacity, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom), may be disregarded, provided he has clearly continued to be based here.

Discretion in cases where continuous residence has been broken

In addition, time spent here in this capacity may exceptionally be aggregated, and continuity not insisted upon, in cases where:

- there have been no absences abroad (apart from those described in paragraph 3 above) and authorised employment or business here has not been broken by any interruptions of more than 3 months or amounting to more than 6 months in all; or

- there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in all."

Following the challenge the instruction is no longer used for investors. New guidance is awaited from the Home Office to be sure of the position for other categories.