Individuals who have lived continuously and lawfully in the UK for 10 years can apply for Indefinite Leave to Remain under the 10-year Long Residence route. On 11 April 2024, updated Immigration Rules introduced a new Appendix Long Residence, providing clearer guidance on the continuous residence requirement.

Continuous residence in the UK

To apply for permission to stay or Indefinite Leave to Remain under Appendix Long Residence, applicants must meet the continuous lawful residence requirement, in addition to other aspects of the rule including knowledge of English language and Life in the UK, and the need (also from 11 April 2024) to have held permission to stay in your current visa route for at least 12 months. Note that applicants seeking further leave to remain under the same provision are exempt from the English language and Life in the UK requirements. The continuous residence requirement is detailed in Appendix Continuous Residence.

548-day limit

There was confusion regarding whether the 548-day limit applies to all applications made after 11 April 2024 due to the drafting of previously published rules. However, the updated Long Residence casework guidance and Immigration Rules, along with the updated Continuous Residence guidance issued on 8 October 2024, have provided much-needed clarification on this issue.

Appendix Continuous Residence now states:

CR 2.2A. Subject to CR 2.3, where the application is under Appendix Long Residence, the applicant must not have:

(a) spent a total of more than 548 days outside the UK during their qualifying period, where that 548-day total was reached before 11 April 2024; and

(b) been outside the UK for more than 184 days at any one time during their qualifying period, where that absence started before 11 April 2024.

Continuous Residence guidance provides further explanation which is useful in breaking absences into three parts:

a) any single absences started before 11 April 2024 must be no longer than 184 days

b) any part of a 10-year qualifying period before 11 April 2024 must not have total absences of more than 548 days

c) from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period.

Essentially, the 548-day limit now applies only to absences prior to 11 April 2024 that are part of the applicant’s 10-year qualifying period. This change benefits applicants with historical long absences, especially those who have had long absences at the start of their qualifying period which prevented them from applying under the previous rules. They can now postpone their application until they meet the 548-day limit for their qualifying period before 11 April 2024, as long as they haven’t been outside the UK for more than 180 days in any rolling period after 11 April 2024.

What about a single absence that stated before 11 April 2024, but continued after 11 April 2024? Applying a) above, it should not be more than 184 days in total; applying b), absent days before 11 April 2024 will form part of the 548-day limit; and finally, applying c), part of this single absence after 11 April 2024 will be counted towards the rolling 12-month period.

Permitted absences

Absences for specific permitted reasons will not be counted towards the 180-day limit or the 184/548-day limit mentioned above. These permitted absences include, but are not limited to: assisting with a national or international humanitarian or environmental crisis overseas;  travel disruption due to natural disaster, military conflict or pandemic; compelling and compassionate personal circumstances; certain research activities undertaken by a Skilled Worker under certain job codes; research activities undertaken by a Global Talent under certain endorsement or qualified on the basis of a prize.

It is important to note that COVID-19, as a global pandemic, qualifies as a permitted reason for excessive absences. However, applicants are still required to provide evidence of how their ability to travel to the UK was impacted, such as cancelled flight bookings.

Compelling and compassionate personal circumstances include life-threatening illness of the applicant or a close family or close relative. Close family members include a parent, partner, or child, a grandparent, brother, sister, stepparent, uncle, aunt, and grandchildren. The applicant is encouraged to provide supporting documents, such as medical records or birth/death certificates, to support the consideration of their absences.

Finally, time spent in the Channel Islands or the Isle of Man is not treated as time spent in the UK for Long Residence applications, therefore they will form part of the absences to the UK.

Breaking continuous residence

Other than excessive absences, continuous residence can also be broken by imprisonment, detention, being subject to a deportation order or removal directions, or lacking permission to stay.

Time spent in the UK as a visitor, short-term student, and seasonal worker.

Home Office Long Residence casework guidance confirms that:

Any periods of time with permission in any of the following routes, are not counted in the qualifying period for the purposes of long residence and will break continuous residence for the purposes of the qualifying period for long residence:

• any category of visitor granted under ‘Appendix V: Visitor’ of the Immigration Rules

• short-term student granted under ‘Appendix Short-term Student’ of the Immigration Rules

• seasonal worker granted under ‘Appendix Temporary work – Seasonal Worker’ of the Immigration Rules

We already know that updated immigration rules clearly state that these types of temporary leave do not count towards the 10-year qualifying period. However, Home Office guidance now confirms that such temporary leave (visitor, short-term student, and seasonal worker) also breaks continuous residence.

An example: Adam held student leave from 1 August 2014 until 31 July 2018. Adam left the UK on 29 July 2018 – before his leave expiry. After leaving the UK, he applied for entry clearance as a visitor. His application was approved and he entered the UK from 20 August 2018 and left on 31 August 2018. Adam then applied and was granted for entry clearance as a Skilled Worker on 15 September 2018. He therefore entered the UK as a Skilled Worker on 20 September 2018. Adam has held Skilled Worker leave since then until 20 August 2024. Adam has had no further absences from the UK and he meets all the other requirements under Appendix Long Residence. He wants to apply for Indefinite Leave to Remain based on his 10-year long residence from August 2014 to August 2024 before his current leave expires (Adam can obviously apply for Indefinite Leave to Remain under the Skilled Worker route, but we are considering his eligibility under Long Residence here only!)

When looking at Adam’s absences from the UK, he only has a period of absence when he left the UK on 29 July 2018 and when he returned as a visitor on 20 August 2018. This period of absence obviously does not exceed 184/548 days. Applying CR 4.1. (d) (iii) of Appendix Continuous Residence, Adam would not have broken his continuous residence. CR 4.1. (d) (iii) of Appendix Continuous Residence states:

CR 4.1. An applicant’s continuous residence period will be broken if any of the following apply:

(d) the applicant does not currently have, or did not have, permission, unless:

(iii) the application is under Appendix Long Residence, and the applicant had permission when they left the UK and returned to the UK with a valid permission (on the same or another route), provided they do not exceed the absence Limit in CR 2.1., CR 2.2. or CR 2.2A.

However, as the Home Office Long Residence casework guidance now confirms that a period of visit leave breaks continuous residence, Adam would unfortunately be affected by this provision, and his 10-year lawful residence would restart from when he entered the UK as a Skilled Worker on 20 September 2018.

This is a particularly harsh provision, and applicants who have previously held visit leave during their 10-year qualifying period should reassess whether they still meet the continuous residence requirement.

Additionally, applicants should be aware that they can no longer rely on a historic 10-year period of residence and will need to hold their current leave for at least 12 months at the time of application (unless their current leave was granted before 11 April 2024).

In conclusion, calculating absences under Appendix Long Residence can be quite complex, and even a minor mistake may result in a refused application. Since extension applications under this route also require the continuous residence requirement to be met, applicants are advised to carefully plan ahead to avoid being unable to extend their stay due to a failure to maintain continuous residence.

If you have any questions regarding your application under Appendix Long Residence, please contact Latitude Law for a free consultation.