10 year ILR applications: Breaks in continuous lawful residence
In order to qualify for indefinite leave to remain on the basis of long residence under paragraph 276B of the Immigration Rules, applicants must demonstrate at least 10 years continuous lawful residence in the UK.
Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant has had one of the following:
- existing leave to enter or remain;
- 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.
Breaks in continuous residence
Continuous residence is considered to be broken if the applicant has:
- been absent from the UK for a period of more than six months at any one time;
- been absent from the UK for a shorter period but does not have valid leave to enter the UK on their return, or valid leave to remain on their departure from the UK; or
- spent a total of 18 months outside the UK throughout the whole 10 year period.
Continuous residence is also broken if an applicant receives a custodial sentence from a court of law and is sent to either a prison, young offender’s institution or secure hospital. Any time the applicant spends in one of the above establishments does not count as continuous leave for the purposes of meeting 276A and 276D of the Immigration Rules. Any leave accumulated before sentencing will be disregarded and only residence after release from custody will be counted as continuous residence.
When is lawful residence not broken?
Continuous lawful residence is not broken if the applicant has a gap of leave outside the UK of six months or less. For example, applicants who leave the UK before their valid leave expires and obtain fresh entry clearance and re-enter the UK do not break continuous lawful residence, providing the absence from the UK is less than six months.
Continuous lawful residence is also not broken if the applicant leaves the UK after their valid leave has expired and successfully applies for entry clearance less than 28 days after their original grant of leave expired.
Discretion for breaks in lawful residence
UK Visas and Immigration retains a discretion to waive breaks in lawful residence. ILR may still be granted, on a discretionary basis, where an applicant:
- has one or more short gaps in lawful residence through making one or more previous applications out of time by no more than 28 calendar days; or
- has a single longer gap in lawful residence through making a single application more than 28 calendar days out of time, provided that there were exceptional reasons such as a postal strike, hospitalisation or an administrative error made by the Home Office.
In either case, the applicant will need to meet all the other requirements for lawful residence and have otherwise acted lawfully throughout the whole 10 year period and made every effort to obey the Immigration Rules.
For advice and assistance with applying for indefinite leave to remain under the 10 year long residence rule or appealing against a decision to refuse ILR under the 10 year long residence rule, contact our immigration barristers in London.