Unpaid leave, sabbaticals and career breaks

Two Rules, Measuring Two Different Things

Indefinite leave to remain, also called settlement, is permission to stay in the UK with no time limit. On the Skilled Worker route it is reached after 5 years. Time off work touches two separate published rules, and they measure different things.

• Appendix Continuous Residence counts days outside the UK. It does not ask about pay at all.
• Paragraph SUI 36.1 of the Immigration Rules counts weeks without pay. It does not ask where the person was.

Unpaid leave taken in the UK is invisible to the first rule and visible to the second. A paid holiday abroad is the other way round.

The 180-Day Absence Rule

Paragraph CR 3.1 of Appendix Continuous Residence states that the applicant “must not have been outside the UK for more than 180 days in any 12-month period”. This is often called the 180-day rule.

The window rolls. The Home Office’s continuous residence guidance takes any 12-month period inside the qualifying period and adds up the days abroad in it, rather than looking at calendar years. The same guidance says only whole days are counted: “Part day absences, less than 24 hours are not counted.” Its worked example is a 180-day absence where the journey home begins on day 180 and lands on day 181 — day 181 is not a day of absence, so the 180 days are not exceeded.

Pay does not enter this calculation. Unpaid leave spent in the UK adds nothing to the count; unpaid leave spent abroad adds every whole day, exactly as a paid holiday would.

The 4-Week Rule on Unpaid and Reduced Pay

Paragraph SUI 36.1 of the Immigration Rules applies to people on the Skilled Worker, Intra-Company, Representative of an Overseas Business, Scale-up, Global Business Mobility, T2 Minister of Religion, International Sportsperson and Temporary Worker routes. It provides that a person who has been “absent from work without pay, or on reduced pay, for more than 4 weeks during any calendar year may have their permission cancelled”, unless the reason for the absence is one or more of the following:

• statutory maternity leave, paternity leave, shared parental leave, neonatal care leave, or parental leave;
• statutory adoption leave;
• sick leave;
• assisting with a national or international humanitarian or environmental crisis, where the sponsor agreed to the absence for that purpose;
• taking part in legally organised industrial action;
• jury service;
• attending court as a witness.

The threshold is 4 weeks in a calendar year, and it covers reduced pay as well as no pay. An ordinary sabbatical or personal career break is not on the list.

What the Sponsor Has to Confirm at Settlement

Appendix Skilled Worker sets the settlement requirements for settlement as a Skilled Worker. Paragraph SW 24.1 requires the sponsor named in the most recent permission still to be approved to sponsor Skilled Workers on the date of decision. Paragraph SW 24.2 requires the sponsor to confirm “that they still require the applicant to work for them for the foreseeable future, and that the applicant is paid, and will be paid for the foreseeable future”, at least the required salary.

The table at SW 24.3 sets that salary at £41,700 a year in the general case; £33,400 where the most recent permission was for a job on the Immigration Salary List; £31,300 and £25,000 in the further cases the table sets out, including listed health and education occupation codes. In every row the salary must also be at least the going rate for the occupation code.

Paragraph SW 24.4(b) deals with someone who is on leave when they apply: where the applicant is absent from work for a reason listed in SUI 36.1, or returned from such an absence within the month before the date of application, the salary considered is their salary on return to work, as stated by the sponsor. For the wider position while sponsored, see our guide to employment rights for visa holders.

The Two Lists of Exceptions Are Not the Same

Both rules have exceptions, but they are different lists, written for different purposes, and something on one is not necessarily on the other.

SUI 36.1, on pay, lists statutory parental and adoption leave, sick leave, humanitarian or environmental crisis work agreed by the sponsor, legally organised industrial action, jury service and attending court as a witness.

Paragraph CR 3.4, on absence from the UK, lists humanitarian or environmental crisis work; travel disruption from natural disaster, military conflict or pandemic; compelling and compassionate personal circumstances such as life-threatening illness or the death of a close family member; approved research activity in named occupation codes; and accompanying a partner on Crown service. Parental leave and sick leave are not on it, so days spent outside the UK during them are counted. Only crisis work appears on both. The Home Office continuous residence guidance sets out how decision makers apply the second list.

Where the Qualifying Period Starts and Ends

Paragraph CR 1.1 calculates the qualifying period by counting back from whichever of these is most beneficial to the applicant: the date of application, any date up to 28 days after the date of application, or the date of decision. The 12-month windows for the absence count sit inside that period.

SUI 36.1 is measured differently again: in calendar years, not in windows counted back from the application. Our guide to settlement requirements sets out the full list of requirements on each route.

The Records Each Rule Turns On

The absence rule turns on the date of each departure and each return, which boarding passes, tickets and passport stamps record. The pay rule turns on the reason for the absence and its length in weeks, which employer correspondence, payslips and statutory leave paperwork record.

The settlement application asks for every trip outside the UK during the qualifying period, with dates and destinations, and the sponsor supplies the confirmation required by SW 24.2 separately.

Where to Read the Rules

Appendix Continuous Residence and Part Suitability of the Immigration Rules are both published on GOV.UK, as is Appendix Skilled Worker. Only an adviser regulated by the Immigration Advice Authority, or a solicitor, may advise on how they apply to a particular person.

Related guides:

• Settlement Absences and the 180-Day Rule
• Continuous Residence for Settlement
• Settlement as a Skilled Worker
• Skilled Worker Visa Guide
• Settlement Requirements

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