The long residency route (10 years lawful residence) to Indefinite Leave to Remain (“ILR”) (also known as permanent residence) has recently been the subject of more attention than usual, in part due to the number of refusals the Home Office has been issuing to hopefuls applying under this route.
It would appear that this is due to a consistent misunderstanding of what constitutes a ‘continuous period’ of residence in the UK – the vital component of an application under the ‘long residence’ rules. No less important is to understand how this ‘continuous period’ can be broken.
Anyone who wishes to apply for ILR after having been in the UK for 10 years, on various different visas, would logically consider applying under the long residency route. However, anyone contemplating this option must ensure that, over the entirety of the continuous 10-year period, they have never spent more than 6 months continuously outside of the UK, or a total of 18 months outside of the UK during the entire 10 years. As the Home Office defines a month as being 30 days, this would translate to no more than 180 days at any one time, or no more than 540 days across the 10-year period. This is relatively strict, and does not allow for prolonged absences.
The trap into which many may fall is to believe – mistakenly – that the level of absences permitted by alternative routes to ILR are similarly applicable to the 10-year long residency route. They are not!
Most regular routes to ILR require a period 5 years’ continuous lawful residence, with 180 days absences allowed in any fixed period of 12 month, or the same 180 days in any 12 month rolling period, PhD students employed on a Tier 2 work visa, for example, are allowed absences of 12 months for sponsor approved field research. No such leeway can be found in the 10-year long residency route, however.
Any break in the 10-year period, as described above, will result in it being ineligible as a ‘continuous’ one for the purposes of the long residence route.
Exceptions, as always, do exist, but even these are stringent. Only those excess absences resulting from compelling or compassionate circumstances, (as the guidance dictates) will even be considered. This threshold translates to the ‘inability to return to UK due to a cyclone’ or ‘a crippling bout of plague causing a prolonged stint in a foreign hospital’. Providing an explanation to the Home Office along the lines of ‘I believed I could conduct research abroad’ or ‘I did not keep track of my travel’ would be nowhere near compelling enough.
Unfortunately, the arguably drum-tight absence requirements of the 10-year long residency visa route to ILR are here to stay, and catch many hopeful applicants out every year. Those wishing to rely on 10 years of UK residency must be keenly aware of their travel histories and check their eligibility carefully before proceeding in this category.
Gherson is fully equipped to advise you on your ILR application based upon 10 years of continuous residency in the UK. If you would like advice or assistance in respect of preparing an application under this route, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2019