Absences

Where an individual has lived in the UK lawfully and continuously for at least 10 years, even with different types of immigration permission, they may be eligible to apply for indefinite leave to remain on the basis of their long residence in the UK. This is potentially helpful to many people who have held different types of permission but have not been able to apply for indefinite leave on their visa route. For example, where someone has held Student permission for four years, Graduate permission for two years and Skilled Worker permission for four years, they may not need to wait until they have held permission as a Skilled Worker for five years to apply for indefinite leave. This person could potentially accumulate all of their immigration permission in the last 10 years and apply for indefinite leave on the basis of their ‘long residence’.

However, in order to have a successful application for indefinite leave on the basis of long residence, it is not enough for the applicant to show they have lived in the UK lawfully for 10 years. They must also show that this residence has been ‘continuous’ – but what does ‘continuous’ mean?

Appendix Continuous Residence of the Immigration Rules sets out how the continuous residence requirement is met. Previously, to meet the continuous residence requirement, an applicant applying for indefinite leave on the basis of long residence must not have been outside of UK for more than 184 days at one time, and or for more than 548 days in the 10-year period. This was specific to long residence applications; some other types of applications also have a continuous residence requirement but would need to meet this only by not being absent for more than 180 days in any 12-month period. This meant that the continuous residence requirement was more restrictive for long residence applicants, who only had an average annual absence allowance of around 54 days.

The Home Office changed the Rules on 11 April 2024 so that long residence applicants would, in general, need to meet the continuous residence requirement in the same way as applicants applying for indefinite leave on different routes. However, this change brought with it a lot of confusion as the wording of the new Rules was very unclear.

We have since been given new Home Office guidance on the issue, as well as a Statement of Changes to the Rules which seek to clarify the matter. Exactly how an applicant meets the continuous residence requirement under Appendix Long residence will depend on whether the absences fall before or after 11 April 2024:

Any single absence (i.e., one trip overseas) started before 11 April 2024 must be no longer than 184 days.
Where some of the 10-year qualifying period starts before 11 April 2024, the absences before this date must not total more than 548 days.
The absences in the part of the qualifying period that falls on or after 11 April 2024 will need to meet the new rules i.e., no more than 180 days in any 12-month period.

In terms of point 2 above, it is only the part of the 10-year qualifying period which falls before 11 April 2024 which is subject to a limit of 548 days in total, regardless of the length of the period which falls before this date.

Applicants should also be aware that there are some exceptions where continuous residence will not be broken where the absence limits are exceeded, such as where travel is required for work in certain fields, or where there has been travel disruption due to a pandemic.

With limited exceptions, it is usually the case that where an applicant has at any point in the 10-year period overstayed their permission, this will also break their continuous residence. However, the Home Office has now confirmed that where an individual overstayed their permission between 24 January and 31 August 2020, the overstay will be disregarded to give allowances for those who overstayed because of the onset of the Covid-19 pandemic. Furthermore, time spent in the UK between 1 September 2020 and 28 February 2023 where the individual had one or more grants of ‘exceptional assurance’ (which was a type of permission being granted to those who could not leave the UK due to pandemic travel restrictions) will also not break continuous residence. Interestingly, periods spent in the UK with exceptional assurance are being treated as an exception to overstaying, and any periods spent in the UK with exceptional assurance will not count towards the 10 year long residence qualifying period.

Long residence applications currently have a Home Office fee of £2,885, though this is subject to change.

If you require advice or assistance with an application for indefinite leave on the basis of long residence, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Meeting the ‘continuous residence’ requirement of Appendix Long Residence

Long residence ILR: what are the rules on absences from the UK?