I had always believed that in an application for settlement based on 10 years’ lawful residence pursuant to Paragraph 276B of the Immigration Rules, as soon as the applicant has not been away from the UK for more than 180 days on any single occasion or 540 days in total during the past 10 years up to the date of the application, his/her continuous residence should not be treated as broken.
That was the reason why I wanted to correct a colleague one day when I saw in his advice to a client the respective absences had become 6 months and 18 months. He was surprised at it. He failed to understand why I changed it, as 6 months was 180 days and 18 months was 540 days.
I told him that it was not correct, as 6 months did not always equate to 180 days and the same with 18 months. A month can be 28, 29, 30 or 31 days. A year is 365 days and consists of 12 months. On average, a month should be 30.42 days, 6 months is 182.5 days and 18 months is 547.5 days. To make it worse, in some circumstances, the difference could even be more. If we advised client in this way, we could be misleading, as we were telling clients the absence more than allowed under the Immigration Rules.
My colleague told me that he was quoting precisely from the Immigration Rules. He then showed me Paragraph 276A(a) of the Rules. I could clearly see 6 months and 18 months there, with my own eyes. I immediately became ashamed of my ignorance.
I wondered where I got the 180 and 540 days from. I checked the Home Office’s guidance to its officers on long residence, Version 16.0, published on 18th October 2019. I immediately saw the origin of my mistake.
On Page 11 of the guidance, under the subtitle Events that break continuous residence, it states that continuous residence can be broken if the applicant has been absent from the UK for a period of more than 6 months at any one time or spent a total of 18 months outside the UK throughout the whole 10 year period. Right above this provision, it states that “for the purpose of calculating time spent outside the UK for the long residence rules, a month constitutes 30 calendar days”.
It is probably because of this definition that on the following page (Page 12), when talking about the same residence, only 180 and 540 days are used. The 18 and 54 months have been removed completely.
It is clear that the Home Office has been instructing its officers that 6 months is 180 days and 18 months 540 days and that 180 and 540 days have been used to judge whether an applicant’s continuous residence has been broken when dealing with settlement applications based on 10 years lawful residence.
It is well established law that wherever there is conflict between the Immigration Rules and the Home Office’s internal policy/guidance, the former prevails, as it has been subjected to the Parliament’s scrutiny and approved by it, while the latter is not.
I then must consider whether the word month is defined under the Immigration Rules. I can see that week has been defined as a period of 7 days counting from a Monday. I am unable to find similar definition for month. In such absence, I have to say that the Home Office’s definition in its guidance is unlawful.
I understand that it may be difficult to count an applicant’s absence by month in practice. He/she could leave the UK on 19th March and return on 9th May. It will be difficult to say whether he/she was away from the UK for one month, three months or one month and 20 days. However, difficulty alone cannot be a pretext for the Home Office to simplify the calculation in this way.
By treating a month as consisting 30 calendar days, the Home Office has effectively taken away at least 7.5 days from an applicant’s absence allowance if the days of his/her total absence during the 10 years is in issue. It is indeed unlawful.
Of course, for the sake of clarify and its own benefit, the Home Office can always seek to amend the Immigration Rules and replace month with day or define month as having 30 calendar days, as in other legislations (in the British Nationality Act 1981, the allowed absence has been 90, 270 or 450 days); however, before such thing happens, the correct law should be what is stated in the Immigration Rules, not the Home Office’s guidance.
18 months is not 540 days, unless so approved by the Parliament.
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