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10 year ILR applications: discretion to waive breaks in continuous residence

This is an update to an article posted earlier this year, concerning breaks in continuous residence and applications for indefinite leave to remain under paragraph 276B of the Immigration Rules (the 10 year ILR rule).

As we noted previously, in order to qualify for settlement on the basis of long residence, applicants have to demonstrate at least 10 years continuous and lawful residence in the UK.

Continuous residence is considered 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 did not have valid leave to enter the UK on their return, or valid leave to remain on their departure from the UK, or has spent a total of more than 18 months absent from the UK throughout the whole 10 year period.

Until recently, UK Visas and Immigration had no discretion to waive breaks in continuous residence. Caseworkers retained a discretion to waive breaks in lawful residence (see here for the circumstances in which the lawful residence discretion may be exercised), but applicants who had been absent from the UK for a period of more than six months at any one time or spent a total of more than 18 months outside the UK throughout the whole 10 year period could expect to receive a refusal decision. This was the case even where the relevant time limit had been exceeded by just 1 day, with the only potential remedy then being an appeal on human rights grounds.

In a welcome development, the latest Modernised Guidance on Long Residence (published on 8 May 2015), introduces a new element of discretion in relation to the continuous residence requirement and allows for a grant of leave outside the Immigration Rules in appropriate circumstances. It states:

If the applicant has been absent from the UK for more than 6 months in one period and more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.

It is worth noting that the discretion may be exercised where the circumstances surrounding the excess absence(s) are either compelling or compassionate. There is no requirement for the circumstances to be both compelling and compassionate.

The Guidance provides a list of factors that caseworkers should consider when determining if it is reasonable to exercise discretion.

  • whether the individual returned to the UK within a reasonable time once they were able to do so;
  • for a single absence of over 180 days, how much of the absence was due to compelling circumstances, whether the applicant returned to the UK as soon as they were able to do so and the reasons for the absence;
  • for overall absences of 540 days in the 10 year period, whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the ten year residence period and how soon they will be able to meet that requirement

The Guidance makes clear the relevance of the last factor, explaining that if the absences were towards the start of that period, the applicant may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements. Conversely, if the absences were recent, the applicant will not qualify for a long time, and so caseworkers must consider whether there are any particularly compelling circumstances.

Not only does this new discretion afford applicants who have narrowly missed the continuous residence requirement an opportunity to succeed on initial application, but with decisions in relation to 10 year ILR applications triggering a right of appeal under the Immigration Act 2014, the Secretary of State’s exercise of discretion will be reviewable on appeal in line with Ukus (discretion: when reviewable) [2012] UKUT 00307 (IAC).

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