How to Calculate Absences For 10 Year Long Residence ILR Application
There are several routes to permanent settlement in the UK, one of which is the ten-year-long residence scheme. Under this route, migrants are able to apply to settle in the UK once they have been living in the country legally for ten continuous years (this is referred to as ‘long residence’). Those who are successful in applying under the long residence scheme will be given ‘indefinite leave to remain’ (ILR), allowing them to remain in the UK indefinitely. This immigration path to settlement is typically used where an individual did not qualify for ILR earlier, such as through the commonly used five-year continuous residence qualification period for those with a Tier 2 or Tier 5, UK Ancestry, PBS dependant, and representative of an overseas business visa. In this article, we will explain the main eligibility criteria for the long residence ILR route, and importantly, how the Home Office works out your period of continuous residence.
What Are the Qualification Criteria for ILR Based on Long Residence?
The immigration rules state that in order to be eligible for ILR based on long residence, you will need to have:
- permission to stay (‘leave to remain’).
- been in the UK legally for ten years (‘continuous residence’)
- kept to the terms of your UK visa
- passed the Life in the UK Test
- evidence that you have sufficient English language skills
In many cases, individuals considering this route to ILR would not have been able to apply earlier either because of the immigration category they were in, or because they have switched between different categories. When switching from one category to another, one of the implications is that the time built up to acquiring ILR is ‘reset’ each time. The benefit of the long residence route is that you can apply regardless of the immigration category you are in or the combination of different immigration categories you have held during your time in the UK. As long as you have been lawfully in the UK and meet the ‘continuous residence’ requirement, you will be able to apply.
How Is the Ten Years’ Continuous Lawful Residence Calculated?
Unfortunately, it is not uncommon for applicants who do not understand how ten years’ continuous lawful residence is calculated by the Home Office to receive a letter of refusal. The first point to make is that once you have acquired the ten years you need for ILR, this cannot be lost; you can leave the UK and re-enter lawfully, and then apply for long residence ILR.
The continuous lawful residence is defined by the Home Office as a period in which a migrant to the UK had existing leave to enter or remain, OR temporary admission within section 11 of the 1971 Immigration Act where leave to enter or remain is subsequently granted, OR an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
It is important to note that only time spent in the UK (England, Scotland, Wales, and Northern Ireland) counts towards long-residence. Any time spent in the Republic of Ireland, Channel Islands or the Isle of Man does not count.
When calculating how much continuous time you have spent in the UK, it is advisable to write down when you first entered, and all of your episodes of travel outside of the UK since. Even if you first entered the UK ten or more years ago, the Home Office will check how long you have been outside (also referred to as ‘absence’ or ‘breaks in continuous residence’) of the UK in that time.
Breaks in continuous residence
Generally speaking, you will only need to deduct time spent outside of the UK during the ten-year period if you:
- have been absent from the UK for a period of more than six months at any one time
- spent a total of 18 months outside the UK throughout the whole ten-year period
- left the UK before 24 November 2016 with no valid leave to remain on your departure from the UK, and failed to apply for entry clearance within 28 days of your previous leave expiring (even if they returned to the UK within six months).
- Have spent time in prison
On the last of these points, as long as you had valid existing leave to enter or remain before you left and returned to the UK, it does not matter if you left on one visa type and re-entered on another. For example, if you left with time remaining on your study visa and came back within six months on a spouse visa, then you will not be classed as being absent from the UK when working out your total amount of continuous residence (this assumes you didn’t exceed the six or 18 month absence rules).
The Home Office guidance for long residence also explains that discretion may be applied if you had compelling or compassionate reasons for leaving the UK for more than the allowed periods. If this does apply in your situation, it is advisable to engage the services of a team of experienced immigration lawyers who will ensure that your application is submitted with a covering letter explaining your circumstances, along with any evidence needed.
The long-residence route offers many migrants who have been living in the UK for ten or more years the ability to secure permanent residency. Given the criteria for continuous residence, it is important to check that there are factors which may reduce the time you have been in the country from the perspective of the immigration rules. By checking this before you apply, you can ensure that your case is successful, and, therefore, that your time, effort, and the application fee is not wasted.
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