Update: The Home Office published its latest Statement of Changes to the Immigration Rules which will take effect between April 2023 and June 2023. Read more about these changes here.

This deceptively  simple  question  was  the  subject  of  the  Upper  Tribunal’s  recent  decision  in  Chang  (paragraph 276A(a)(v); 18 months?)[2021] UKUT 65 (IAC).The answer: 548 days.

Why does it matter?

It matters because anyone applying for indefinite leave to remain on the basis of long residence needs to show that their total absences from the UK fall below 18 months. This is necessary as, to qualify, an applicant must have 10 years of continuous lawful residence in the UK. If the total absences exceed the 18 month threshold the continuous period is broken.

Anyone  who  remains  in  the  UK  most  of  the  time  and  only  leaves  for  holidays will most likely meet this requirement. However, it can easily be exceeded over a period of 10 years where the applicant has family abroad or travels frequently for work. Being outside the UK for 8 weeks each year would be enough to lead to the threshold being exceeded.

The Upper Tribunal’s decision

The applicant in Chang came to the UK aged 10 to attend school and, understandably, returned home each summer to spend  time  with  her  parents.  As  a  result,  she  had  spent  543  days  outside  the  UK.  The  Home  Office  refused  her application on the basis that she had been outside the UK for more than 18 months, which they interpret in their guidance as 540 days (18 x a notional month lasting 30 days).

The Upper Tribunal disagreed, first highlighting that the use of months was inappropriate for calculating absences:

“As  a  matter  of  arithmetic,  if  a  period  of  18  months  were  consecutive,  it  would  always  be  at  least  547  days  if  it incorporated two non-leap year Februarys.   But it can and does vary, and the exact number of days in a period of 18 months cannot be properly ascertained unless the start or finish date of that period is known. Using a period of months to calculate accumulated absences (as opposed to a single period) is for that reason inappropriate and leads to a lack of certainty.” [paragraph 18]

The Tribunal then went on to conclude that, applying a common sense approach, 18 months should be interpreted as meaning a year and a half:“In everyday usage, 18 months means a year and a half, rather than a collection of months selected at random. Any year has  either  365  or  366  days.  Similarly,  any  half-year  has  either  182.5  or  183  days.  As  leap-years  cannot  follow  each other, then a year and a half is either 547.5, 548 or 548.5 days” [paragraph 21]

Adopting the convention that 0.5 is rounded up or down to the nearest even number, 18 months becomes 548 days.

The fact that the Home Office Guidance states that 18 months means 540 days is beside the point, as the Home Office cannot impose legal requirements through guidance. These must be contained in the immigration rules.

The appeal was therefore allowed.

This will be a useful decision for anyone whose absences are close to the 18 month threshold. The extra 8 days could be the difference between success or failure, as was the case for Ms Chang.

Please contact our Immigration team if you need any advice.

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