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Are we punishing the academics?

With the introduction of the Global Talent Visa, there comes the new rule that any absences from the UK for the purposes of research will not be taken into account when considering settlement under this visa route.

It is surprising that it has taken such a long time for the government to introduce this, considering that the majority of researchers spend a lot of time outside of the UK to conduct field research into their chosen area of expertise. PhD students and migrants who hold PhD level occupations will tell you the same. Considering the current Tier 1 Exceptional Talent visa does not include this is beyond me, especially those who were endorsed under Research and Innovation sub-category.

A lot of academics or researchers who are currently on a Tier 1 Exceptional Talent visa or a Tier 2 visa fail to understand the implications of their absences from the UK. By the time they realise, their settlement application has been refused. Oversight of this requirement is common. Although it is important to appreciate that different rules exist depending on the visa category.

What is the general rule?

The general rule for settlement applications under the Tier 1 Exceptional Talent route and the 10-year long residence rule is that you should not be absent from the UK for more than 180 days during any consecutive 12-month period. Periods of absence for the purposes of work will also be counted. This was the same under the Tier 2 route until recently.

In March 2019 when the Chancellor at the time, Philip Hammond, stated that the government intends to change the law so that researchers would no longer be penalised unfairly for time spent overseas conducting important fieldwork. This was followed through to a certain extent in October 2019 when the rules for PhD-level occupations was changed, where overseas absences for the purposes of research would be disregarded for applicants in such jobs. Although this absence exemption is only applicable to those who are on the Tier 2 route and are applying to settle after 5 years.

Hostile immigration environment?

A recent example of the hostile immigration environment is the case Dr Asiya Islam, a Research Fellow from Cambridge University, whose settlement application was refused because she spent too many days outside of the UK. However, the reason for these absences was due to conducting field research in Delhi, India as part of her PhD. She had spent one year in Delhi conducting the research. A vital point to be highlighted is that Cambridge University themselves had supported the field research.

Monica Atwal

Managing Partner

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+44 118 960 4605

The government intends to change the law so that researchers would no longer be penalised unfairly for time spent overseas conducting important fieldwork.

There was a total disregard to the fact that Dr Islam had in fact resided in the UK for a period of 10 years and the University had approved the absences. Similar cases have emerged from researchers from Oxford University. The technical point here is that Dr Islam above was relying on the 10-year long residence route to settlement which is a different category to the Tier 2 route, as a result, there was no such provision she could rely on to waive her absences.

Attracting the best and the brightest?

The government has stated numerous times that it is focusing on attracting the world’s best to the UK. Thus, should the exemption to the absences rule be extended to all visa routes for academics and researchers? On a positive note, we are glad that the Global Talent Visa includes this exemption – it may even do a better job at attracting the best and brightest to the UK compared to the Tier 1 Exceptional Talent visa.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

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