The lure of a secondment abroad is often one of the main reasons law students elect to train at international law firms. It can be a key component of a successful training contract, benefiting them on both a professional and personal level, by enhancing their skills and expertise, and providing them with the opportunity to travel and experience a new working environment and culture.
However, for non-EU lawyers training or working in UK firms, a training seat or secondment abroad may have to become a thing of the past. The Home Office has recently introduced changes to the immigration rules which affect how long lawyers on work visas, such as a Tier 2 General visa, can spend outside the UK if they want to stay in the UK long term.
Around the world, but in 179 days
For an individual to qualify for Indefinite Leave to Remain (ILR) in the UK, they need to show they have been continually resident in the UK during the five year period preceding the date of application. The Government assesses continual residence by checking the number of days an applicant has been absent from the UK. This test changed as of 11 January 2018.
Previously, the Home Office required that an applicant for ILR must not have been absent from the UK for a period of 180 days or more in any of the five 12-month periods preceding the date of the application.
From 11 January 2018, an applicant for ILR must not be absent for more than 180 days during any 12-month period over the five years. It will mean that an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period. Absences are calculated on a rolling basis, instead of in fixed blocks.
The significance for trainees and associates who have taken six-month secondments is that under the old system, you could time an ILR application so that you could ‘split’ the secondment into two different 12 month periods and remain within the 180 day limit. This will no longer be possible. Furthermore, as the new rules will apply to all ILR applications made after 11 January 2018, many people may have already exceeded the limit and be unaware they have potentially jeopardised a future ILR application.
Over the limit?
There is no need to panic just yet though. The Home Office has issued new guidance to go along with the rule change. This states that discretion will be exercised if a refusal based on the new rules will cause ‘exceptionally harsh circumstances’, particularly if it will not be possible for an applicant to qualify for ILR at a later date or they will not be able to apply for further extensions to their visa.
As there is a six year limit on the length of time a Tier 2 General visa holder can stay in the UK in this visa category, it is to be hoped that this will cover the scenario where a Tier 2 General visa holder has exceeded the 180 day limit in the past and will be left with no other options but to leave the UK unless the ILR application is approved.
To second or not?
It is important that all Tier 2 General visa holders keep a tally of their absences from the UK and the best way to do this is by keeping an excel spreadsheet updated. Non-EU trainees and associates may still be able to take secondments abroad but they are likely to have to be of short duration with careful planning so that the individual’s long term future in the UK is not affected.
Unfortunately, this may put them at the back of the queue when it comes to the internal law firm decision over who gets to go abroad if other lawyers can commit to longer placements. The fact that they may miss out on the opportunity to build their skills and international network is a shame and a needless consequence of the Home Office’s need to tinker repeatedly with immigration rules. The end result could see UK law firms losing out on the brightest international law graduates, who may be put off by these restrictions and choose other countries in which to build their careers.
Joanna Hunt is a senior associate at Lewis Silkin