Long residence applications - where are we now?
For many years the long residence route was pretty straightforward. 10 years’ continuous lawful residence, good character, within absences limits – job done.
What has developed in recent years, however, is partly due to Home Office standardisation, and partly down to the – I’m going to call it tenacity – of legal reps, who have probed and pushed the boundaries of the 10-year route to a significant extent. This poking of a nice long-stop route to settlement with a legal stick has led the Home Office to recoil, on a number of different occasions, amending guidance and immigration rules in response to legal challenges that have made 10-year cases more complex than they ever should have been.
A line of cases has focused on the effect on lawful residence of overstaying a visa, usually following refusal of an application; book-ended versus open-ended overstaying leading to a break in residence. These cases arose because the immigration rules in some instances allow a valid application to be made following a period of overstaying, which if successful can maintain continuous lawful residence. The Court of Appeal in Hoque decided that where a period of overstaying permitted under the old Part 7 Immigration Rules was book-ended by a grant of further leave to remain, that period of overstaying did not reset the clock for 10 years’ lawful residence. It could even be counted towards the 10 years. However, in the case of Afzal, the Court of Appeal concluded that – while time spent waiting for a decision on a book-ended period of overstaying could not count as lawful residence – it did not break continuity of residence.
In Iyieke, another constitution of the Court of Appeal found that a period of overstaying was not book-ended by a late yet valid application, where that application went on to be refused, but was then succeeded by a second out of time application resulting in a grant of limited leave.
The Supreme Court then scrutinised its junior colleagues’ work in the joined appeals of Afzal and Iyieke. Afzal failed, the court holding that while his overstaying didn’t break his lawful residence, it couldn’t count towards his 10 years itself. He therefore fell short of the required period of residence. Iyieke also failed, the court deciding that his time on temporary admission awaiting the outcome of a human rights claim could not count towards his 10 years. The rules now reflect the case law, confirming that no periods of overstaying – disregarded or otherwise – can count towards someone’s 10 years.
The ineligibility of temporary admission and its successor status, immigration bail, are now confirmed in amended Immigration Rules. Previously there was no issue with the type of lawful residence – visits and temporary admission counted. This was changed in 2023, meaning such residence can no longer be relied upon. Nor can time as a seasonal worker or short-term student, or time spent under a Covid-related exceptional assurance. Time spent elsewhere in the Common Travel Area also does not count.
Time spent lawfully under EU law – possibly excluding a derivative right of residence based on an EU-citizen child for example - does however continue to count. Similarly, time spent while exempt from immigration control also counts.
In another recent 10-year judgment, the Court of Appeal has confirmed in Al-Azad that variation of an outstanding application (in this case, settlement as a Tier 1 Entrepreneur) to one for 10-year setttlement did not cure an earlier use of deception (such as to draw refusal on general grounds) despite the earlier application having been varied.
The situation with absences from the UK has also gained complexity over the years. The general rule is that – so long as within date limits discussed below – departure while holding valid leave, and return either on that same leave or on newly-granted entry clearance, does not break lawful residence. Immediate departure from the UK following refusal of an application for leave to remain can also satisfy this requirement; this is clear where someone embarks within the period allotted for an appeal or administrative review, for example. But what about someone refused without a right of appeal or review, as a result of their having made an out-of-time (yet valid) in-country application? We have successfully argued that immediate departure – bearing in mind the practicalities of packing up and booking a flight – followed by lawful return on a new visa does not automatically reset 10 years’ residence. Case law does not however deal with this.
More recent rule changes have brought further complexity. Appendix Continuous Residence now applies to these cases, which broadly means that – counting backwards from date of ILR application – continuous residence is broken by absences of more than 180 days in any 12-month period. Transitional provisions mean the situation is slightly different where absences started before 11 April 2024; here, no single absence can exceed 184 days, and the old 548-day total absence limit will also apply, but only to that part of the qualifying period before 11 April 2024. The usual Appendix CR exceptions relating to absences for humanitarian reasons, due to natural disasters including pandemics, compelling or compassionate family or personal circumstances, now apply. Importantly, for long residence applicants, it is also confirmed that these exceptions apply to absences before 11 April 2024, so Covid-related absences can potentially be disregarded - far preferable to the old discretionary provisions contained in long residence guidance. Appendix Continuous Residence also confirms that a period of imprisonment will break residence.
A crucial change brought about by Appendix Continuous Residence is due to counting back; this means it is no longer possible to rely on a historical 10-year period of residence for a successful long residence application. A recent breach of the 180-day limit, without mitigation, makes it impossible to do so.
It is also a requirement, where current permission to stay has been granted since 11 April 2024, that a 10-year applicant must have had permission on their current visa route for at least 12 months at date of application, or have been exempt from control within the 12 months preceding date of application. What does this amendment seek to cure? The case of the serial visa route switcher, presumably, who is changing short-term status in an effort to reach 10 years. In practice, most applicants will have last been granted leave for at least 12 months, bearing in mind the exclusion of most short-term status from consideration. All this rule does is delay a potential 10-year application to a point when they have held their latest grant of leave for 12 months.
Long residence applications have the potential to be complex. If your period of residence includes significant absences or unsuccessful applications for leave – even if superseded by successful ones – expert legal advice is highly recommended. To speak to one of our specialist layers, call on now on 0300 131 6767 or fill out the contact form below and we will get back to you.
