What is Appendix Continuous Residence?

To settle in the UK permanently, visa holders must meet the eligibility requirements for UK indefinite leave to remain. One of the more challenging requirements is for the ILR applicant to show that have continually resided in the UK, as stipulated in “Appendix Continuous Residence”.

Appendix Continuous Residence outlines the rules that individuals on specific UK visas must meet to qualify for settlement, also known as indefinite leave to remain (ILR). It defines the continuous period required in the UK and sets out the criteria for absences during this time. The appendix applies to visa holders such as those on Skilled Worker or Family routes, providing clarity on how their time in the UK is calculated.

Key risks involve exceeding the permitted absence limits, which can break the continuity of residence and reset the qualifying period for ILR. Generally, individuals must not be absent from the UK for more than 180 days in any 12-month period within the qualifying timeframe. Misunderstanding how absences are calculated or failing to document them accurately can lead to complications when applying for settlement.

Considerations include ensuring that absences are in line with allowable exceptions, such as work-related travel or compelling personal circumstances. Applicants must also maintain their immigration status throughout the qualifying period without overstaying or breaching visa conditions.

In this guide, we detail the rules on meeting the continuous residence requirement and the potential pitfalls relating to excessive absences.

 

What is Appendix Continuous Residence?

 

When applying for settlement, or indefinite leave to remain (ILR), an applicant must meet various validity, suitability and eligibility requirements, including a qualifying residence requirement.

Appendix Continuous Residence sets out (and consolidates) the supplementary rules applicable to several different routes relating to the period during which a person must have continuously lived in the UK to be eligible for settlement, including:

 

• How the continuous residence requirement is met
• Absences from the UK
• Breaking continuous residence
• What is meant by lawful presence
• Calculating the continuous residence period, and
• Continuous residence for dependants.

 

When does Appendix Continuous Residence apply?

 

Appendix Continuous Residence of the UK’s Immigration Rules came into effect on 1 December 2020 for settlement applications under various different routes including:

 

• Skilled Worker (and Tier 2 (General))
• T2 Minister of Religion (and Tier 2 (Minister of Religion))
• T2 Sportsperson (and Tier 2 (Sportsperson))
• Representative of an Overseas Business (and Media Representative and Sole Representative)
• UK Ancestry
• Global Talent (and Tier 1 (Exceptional Talent))
• Innovator
• T5 (Temporary Worker) International Agreement Worker (Private Servant in a Diplomatic Household)
• Dependants and Child Dependants of the routes listed above, except for UK Ancestry and Representative of an Overseas Business where there is no qualifying period of continuous residence for dependants.

 

Appendix Continuous Residence was introduced, together with various other changes, as part of the post-Brexit reform of the UK’s immigration system.

 

What is the continuous residence requirement?

 

To be eligible for settlement, an applicant must have spent a specified number of years in the UK, where the length required will depend on the route applied under. The continuous residence requirement will be met if the applicant has spent the qualifying period residing lawfully in the UK as per the requirements and restrictions of their visa category.

For example, if applying under the Skilled Worker route, the applicant must have spent a period of 5 years in the UK under any one of a number of routes, although their most recent permission must have been under either the Skilled Worker or Tier 2 (General) route. As part of the qualifying period requirement for settlement as a Skilled Worker, the applicant must also meet the continuous residence requirement as set out in Appendix Continuous Residence.

This means that the applicant must not have spent more than 180 days outside the UK during any rolling 12-month period, ending on the same date of the year as the date of the application for settlement (for time spent on a visa granted before 11 January 2018), or in any 12 month rolling period (for time spent on a visa granted after 11 January 2018). The way that UK Visas & Immigration (UKVI) will calculate the number of absences will therefore depend on whether the applicant’s visa was granted before or after this date.

There are also certain exceptions to the 180-day absence rule, where there are periods of time outside the UK that will not be counted when calculating the total number of days. These exceptions apply in the context of an application involving any periods outside the UK both pre- and post-11 January 2018 where the absence is for any one of the following reasons:

 

• the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if applicable, their sponsor agreed to the absence for that purpose;
• travel disruption due to natural disaster, military conflict or pandemic (including the COVID-19 pandemic);
  compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member;
• sponsor-approved research activity undertaken by a Skilled Worker and where the applicant was sponsored for a job in one various specified occupation codes, including chemical scientists; biological scientists and biochemists; physical scientists; social and humanities scientists; natural and social science professionals not elsewhere classified; research and development managers; and higher education teaching professionals;
• research activity undertaken by a person on the Global Talent route who was endorsed by either The Royal Society; The British Academy; The Royal Academy of Engineering; or UK Research and Innovation (UKRI).

 

In the context of an ILR application, time spent lawfully in either the Channel Islands or Isle of Man will be treated as time spent in the UK, provided the applicant’s most recent grant of permission was in the UK.

 

How is continuous residence ‘broken’?

 

As the qualifying period for settlement includes a continuous residence requirement, an applicant must not exceed the acceptable level of absences from the UK. An applicant’s continuous residence period will therefore be broken if the applicant is absent from the UK for longer than the permissible 180 days, and none of the exceptions set out above apply.

The continuous residence period will also be broken whilst in the UK if either:

 

• the applicant is convicted of an offence and sentenced to a period of imprisonment (unless it is a suspended sentence) or directed to be detained in an institution other than a prison;
• the applicant is subject to a deportation order, exclusion order or exclusion direction;
• the applicant is subject to removal directions under section 10 of the Immigration and Asylum Act 1999.

 

Equally, the period of continuous residence will be broken where the applicant does not have permission to be in the UK, unless:

 

• they made a successful application for permission to stay under the circumstances set out in paragraph 39E of Part 1 of the rules (this provides limited cases where overstaying will be disregarded: see discussion on the meaning of lawful presence below); or
• they had permission when they left the UK, applied for entry clearance before that permission expired, or within 14 days of that permission expiring, and that application for entry clearance was successful.

 

Finally, any period without permission which occurred before the applicant made a successful visa application before 24 November 2016 will break the continuous residence period unless the applicant:

 

• made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired, or
  had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful.
• In cases where the applicant did not have permission to be in the UK but one of the relevant rules here apply, the periods of time where the applicant did not have permission will not count when calculating the continuous residence period.

 

What is ‘lawful presence’?

 

It is fundamental to the continuous residence requirement that the applicant was in the UK lawfully, where the circumstances in which an applicant will not satisfy this requirement are expressly set out under Appendix Continuous Residence. This provides that the applicant will not be regarded as lawfully present in the UK:

 

• during any period of imprisonment or detention where the applicant has been convicted of an offence and sentenced to a period of imprisonment (unless it is a suspended sentence) or directed to be detained in an institution other than a prison; or
• during any period where they required permission and did not have it, unless paragraph 39E of the rules applied.

 

Paragraph 39E of the rules provides three scenarios where overstaying will be disregarded.

First, overstaying will be disregarded if the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why it could not be made in-time, provided that the application is made within 14 days of the expiry of leave.

Second, overstaying will be disregarded where the applicant previously made an in-time application which was refused, and the current application was made within 14 days of any one of the following:

 

• the refusal of the previous application for leave;
• the expiry of any leave extended by section 3C of the Immigration Act 1971;
• the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
• any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

 

Third, where the period of overstaying was between 24 January and 31 August 2020, there will be no future adverse immigration consequences if the individual did not make an application to regularise their stay during this timeframe, thereby providing migrants whose leave has expired during this period with a COVID-19 concession. These provisions no longer provide ongoing benefits for those who haven’t regularised their stay or applied for exceptional assurance.

In relation to the third (and recently introduced amendment to paragraph 39E), it is worth noting that if an overstayer during the pandemic grace period has not subsequently applied to regularise their stay or submitted a request for an exceptional assurance (where they have been unable to leave the UK), they will no longer be classed under this provision as being in the UK on a lawful basis.

The specific provisions on ’lawful presence’ under Appendix Continuous Residence also provide that where an applicant is classed as breaking their continuous residence period (see the discussion on how continuous residence is broken above), they will not be regarded as continuously resident for any period during which those circumstances are applicable, and the general exceptions to the 180-day absence limit will not apply.

 

How to calculate continuous residence

 

The continuous residence period requiring the applicant not to have been outside the UK for more than 180 days in any 12-month rolling period will need to be calculated by counting back from whichever of the following dates is the most beneficial to the applicant:

 

• the date of application;
• any date up to 28 days after the date of application;
• the date of decision; or
• for a person seeking settlement on the UK Ancestry route, the date of their last grant of permission.

 

Appendix Continuous Residence & Dependants

 

Where the applicant’s partner or parent, on whom they are dependent, was absent for one of the exceptions to the 180-day limit, for example, because of travel disruption due to the pandemic, provision is made under Appendix Continuous Residence to discount that period of absence when calculating the dependant’s continuous residence period.

 

Need assistance?

 

DavidsonMorris are specialist UK immigration lawyers. Employer-sponsors are advised to support their sponsored visa workers through the ILR application process, to ensure they retain their status and can continue to live and work in the UK lawfully. We advise employers and their sponsored workers on options to enter, remain and settle in the UK, including guidance on eligibility and making the Home Office application. For specialist advice, speak to us.

 

Appendix Continuous Residence FAQs

 

What is Appendix Continuous Residence?

Appendix Continuous Residence is a set of rules in UK immigration law that defines the time a person must spend in the UK to qualify for settlement or indefinite leave to remain (ILR).

 

Who does Appendix Continuous Residence apply to?

It applies to individuals on certain visa routes, such as Skilled Worker, Family, or Global Talent visas, who wish to apply for settlement in the UK.

 

How is continuous residence calculated?

Continuous residence refers to the time spent legally in the UK without exceeding the permitted absence limits. Generally, individuals must not be absent for more than 180 days in any 12-month period.

 

Do work-related absences count towards the 180-day limit?

Yes, work-related absences count, but certain exceptions may apply, such as travel due to employment with a UK-based sponsor.

 

What happens if I exceed the absence limit?

Exceeding the 180-day limit can break your continuous residence and reset your qualifying period for settlement. Some exceptions may apply for compelling personal or professional circumstances.

 

Does switching visas affect continuous residence?

Switching visas may impact continuous residence, depending on the specific rules of the visa categories involved.

 

What evidence is required to prove continuous residence?

Applicants must provide documents such as travel records, payslips, or employer letters to demonstrate compliance with the continuous residence rules.

 

Can I apply for settlement early if I meet the criteria?

Settlement applications can generally be submitted up to 28 days before completing the qualifying period of continuous residence.

 

Does time spent on a temporary visa count towards continuous residence?

Certain temporary visa categories may not count towards continuous residence. Always check the rules specific to your visa route.

 

Who can help with questions about continuous residence?

Immigration advisers or legal professionals can provide guidance on compliance with Appendix Continuous Residence and your settlement application.

 

Glossary

Term	Definition
Appendix Continuous Residence	A section of UK immigration law that outlines the rules for maintaining continuous residence to qualify for settlement or indefinite leave to remain (ILR).
Continuous Residence	The time spent lawfully in the UK without exceeding permitted absence limits, as required for settlement applications.
Indefinite Leave to Remain (ILR)	Permanent residency status in the UK, allowing individuals to live, work, and study without time restrictions.
Settlement	The process of obtaining ILR, which grants permanent residency in the UK.
Qualifying Period	The specific amount of time an individual must spend in the UK under continuous residence rules to apply for settlement.
Permitted Absence	The maximum amount of time a person can spend outside the UK during the qualifying period without breaking their continuous residence, usually 180 days in any 12-month period.
Absence Limit	The restriction on the number of days a visa holder can be outside the UK during their qualifying period.
Visa Route	The specific immigration category under which an individual has permission to stay in the UK, such as Skilled Worker or Family visas.
Switching Visas	The process of changing from one visa category to another while remaining in the UK, subject to eligibility rules.
Work-Related Absence	Time spent outside the UK for employment purposes, which may count towards the absence limit.
Compelling Circumstances	Exceptional situations, such as a medical emergency or family crisis, that may justify exceeding the absence limit.
Settlement Application	The process of applying for indefinite leave to remain in the UK after meeting the continuous residence requirements.
Travel Records	Documents such as passports or entry/exit stamps used to evidence time spent in and out of the UK.
Sponsor	An employer or organisation that supports a visa holder’s application, often providing documentation for settlement.
Legal Compliance	Adhering to UK immigration rules, including those related to continuous residence and absence limits.