Indefinite leave to remain refused due to absence: here's what to do next

Indefinite Leave to Remain application refusals

An application for Indefinite Leave to Remain can be refused on many grounds. You will receive written notice usually through the post, so you must ensure you give the UK Visas and Immigration Office accurate address details.

As receiving this status means living without immigration restrictions and a path toward attaining citizenship, our immigration lawyers understand how stressful it can be if your application is refused. This can happen for many reasons, including:

• Wrong information or inaccuracies entered on your application form, SET (O)
• False or incomplete documents submitted in evidence
• Not enough proof of your past or current immigration status
• Failure to attend an interview
• You have broken the current regulations of your stay
• Criminal convictions

But another general grounds for refusal that can affect your application is the failure to meet residency requirements, or length of absence. The effects of the pandemic are still being felt around the world, and may have drastically curtailed travel plans and led to longer absences. Therefore understanding the rules is a must.

Refusal due to length of absence 

To apply for Indefinite Leave to Remain in the UK, there are “residency” requirements you have to meet, one being you must have lived in the Uk for at least five years. This is called a “continuous residency period”, during which you must have been an active member of the UK economy.

On top of this, you must have only been out of the country for a certain length of time. In any 12 month period, you must not have spent more than 180 days outside the UK. Every absence you do have must be adequately explained, for holidays or visiting family abroad for example. You must submit evidence with your application to do so. Further, you must not have spent any time in the UK unlawfully.

If you have been absent from the country for any period longer than 180 days in a given year, there are exceptional cases where it may be allowed by the Home Office:

• Your reasons must be “serious” and “compelling”
• Serious illness of the applicant or family member
• Conflict
• Natural disaster and circumstances out of the applicants control

Unduly long absences because of Covid-19 will be taken into consideration with your application, as long as you provide adequate proof and show that you took action to return to the country as soon as you were able to.

Absences under different types of visa 

Absence requirements and rules can vary depending on the visa route.

Family visas 

Visas under the Family visa category include those in the UK on Spouse Visas, Fiance Visas, and Parent or Child Visas. These categories have no specific cap on how many days you should spend outside the country. Having said that, it is always highly advisable to keep to the 180-day limit. This is due to the rules stating you must have spent at least five years in the UK, and be able to prove it was your main residence. This is to prevent people from applying for indefinite leave to remain when their main residence has in fact been somewhere else, with just short visits to the UK.

Points-based system visas (Skilled Worker visa etc) 

Work-based visas such as Skilled Worker, Intra-Company Transfer, and Temporary Worker visas, restrictive absence requirements apply. You must not break the 180-day limit in any 12 months of your leave. You must also be able to provide evidence to account for any and all absences. For Investor and Innovator visa types, you may not have to provide reasoning but it is imperative you do not breach the 180-day rule.

What to do next if your application is refused 

When you receive your letter from the Home Office, you will be notified whether your application has been refused. From this point, you usually have 14 days to lodge an appeal against your decision, if you feel it is incorrect or has been made unfairly. If you are outside of the country, this extends to 28 days.

Consider the reasons for the refusal

Your next steps will depend heavily on the reasons for refusal. If you have sought the advice of an immigration lawyer, you should show them your letter and they will be able to give advice on how to proceed.

Submit a completely new application

It may be the case that you can see your application was refused due to a mistake or error on your part that is easily corrected, rather than you not making some of the requirements. In this case, you could rectify the error and submit a new application straight away. However, we do recognise this is not always reasonable for people due to the high cost of making applications.

Applying for an Administrative Review

If you believe an error has been made in the decision you’ve received from the Home Office, you can apply for Administrative Review to have your application looked at again. This is only applicable if you feel certain evidence has not been taken into account.

The letter you receive from the Home Office will tell you if the review process is open to you. The process costs £80 and you will usually receive a decision on your appeal in 28 days.

Appealing your refusal  

It isn’t possible to appeal a decision, but in some instances, it may be possible to undertake an appeal of the refusal of an Indefinite Leave to Remain application. The same time frames apply.

Usually, appeals are made on some form of human rights grounds, under Article 8 of the European Convention of Human Rights, the right to a private and family life. 

Judicial Review

Undertaking Judicial Review is also a complex process that questions the legal basis of the Home Office decision. It is only available in certain circumstances when the court permits.

There can be significant fees involved in undertaking a review process in the immigration courts, known as the First Tier Tribunal. Before seeking Judicial Review, talking to an experienced immigration lawyer is crucial.

A notice of appeal must include:

• State the grounds for appeal of the decision
• Signed and dated by you and your lawyer
• State whether you will be present at the hearing
• Reasons for the original ILR refusal
• Any new supporting documents that were not submitted with your first application