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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