Excessive Absence and Long Residence

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
25 March 2021

We acted on behalf of a Ukrainian citizen who applied for indefinite leave to remain on the grounds of long residence.  The application was refused initially by the Home Office because the applicant had spent more than 18 months outside the United Kingdom during the qualifying periods.  One of the requirements to be granted indefinite leave to remain is that the applicant has not been absent from the UK for more than 18 months in total.  We appealed the Secretary of State’s decision to refuse the human rights claim, and it was our task to show that there had been or will be, as a consequence of the Home Office’s decision, an interference with her human rights claim.

The Judge considered the evidence before him in its entirety and found that the evidence is credible and consistent. We explained that the applicant’s absence from the UK was primarily whilst she was a child at boarding school and she would return to her family during the holidays.  It is often that we represent individuals who have spent their formative years in the UK as students and when they apply for indefinite leave to remain the Home Office refuse it on the basis of excessive periods of absence, not taking into account the fact that they have to return to their family during the school holidays when boarding schools are closed.  We argued that whilst applications where the applicant has spent more than 18 months outside the UK would normally be refused, discretion is to be exercised over excess absences in compelling or compassionate circumstances.  We submitted that the earlier and more substantial absences occurred when she was a child and in relation to the most recent periods it was because of particular circumstances in her family situation back home.  The balance of the earlier child absences had been and continues to be substantially reduced through the passage of time, and in recent years she continued being present in the UK and her educational, professional and personal ties have been strongly established. The Judge was persuaded by these submissions, and accepted that she should be granted indefinite leave to remain. The Judge accepted that there were compelling and compassionate circumstances justifying finding in her favour.