10 Year ILR Based on Historic Long Residence
We are often asked when an entitlement to apply for indefinite leave to remain after 10 years’ long residence in the UK expires. Or, put another way, can an application for ILR be made on the basis of historic long residence? The answer to these questions can be found in the Long Residence Indefinite Leave to Remain guidance:-
“Once an applicant has built up a period of 10 years’ continuous lawful residence, there is no limit on the length of time afterwards when they can apply. This means they could leave the UK, re-enter on any lawful basis, and apply for settlement from within the UK based on a 10 year period of continuous lawful residence they built up in the past. There is also nothing to prevent a person relying on a 10 year period that they may have relied on in a previous application or grant. Time the applicant has spent in the UK with 3C leave also counts towards lawful residence.”
As can be seen from the highlighted passage above, entitlement to indefinite leave to remain under the 10 year long residence provisions does not expire. What the guidance says is that once the 10 year period of continuous lawful residence is built up, the entitlement is not extinguished, even after the applicant has spent time living outside the UK. However, if you have left the UK for any extensive period and any other form of leave to remain has expired, you must re-enter the UK lawfully before making the application for indefinite leave to remain under the long residence provisions.
How do I calculate continuous lawful residence?
The guidance referred to above goes on to define what ‘continuous lawful residence’ means (see also this post), as follows:-
“Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant 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
- 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”
A previous blog post discussed the circumstances of how continuous residence will be broken for the purpose of a 10 years long residence ILR application, as follows:-
“Continuous residence will be broken… if the applicant has:-
- Been absent from the UK for a period of more than 6 months at any one time;
- Spent a total of 18 months outside the UK throughout the period;
- Left the UK with no valid leave to remain on departure from the UK and did not apply for entry clearance within 28 days of that leave expiring.
Current periods of overstaying cannot count towards the qualifying residence period for a 10 years long residence ILR application… (see also this post on overstaying).
Long Residence ILR, Absences And Time Spent Outside the UK
In order to meet the requirements for an application for ILR on the basis of 10 years continuous and lawful long residence, you must have:
- Not been absent from the UK for 6 months or less at any one time;
- Had existing leave to enter or remain when you left and returned – this can include leave gained at port when returning to the UK as a non-visa national;
- Departed the UK before 24 November 2016, but after the expiry of your leave to remain, and applied for fresh entry clearance within 28 days of that previous leave expiring, and returned to the UK within 6 months.
If you had existing leave to enter or remain when you left and returned to the UK, the existing leave does not have to have been in the same category on departure and return.
What if I had Indefinite Leave to Remain before which has lapsed while I have been abroad?
Firstly, in calculating historic 10 year periods, it does not matter if any of the 10 years were relied upon in a previous application for indefinite leave to remain. It is however important that the applicant must actually be lawfully present in the UK to make a fresh application under the long residence provisions.
Further, as part of the ‘general considerations’ for indefinite leave to remain under the long residence provisions, an applicant must demonstrate that they have strong connections with the UK. Therefore if an applicant has met the 10 year requirement but has subsequently been abroad, the ‘strong ties to the UK’ criteria must be set out with particular care.
Contact Our 10 Years Long Residence ILR Application Immigration Lawyers
For expert advice and assistance in relation to an ILR application based on 10 years historic continuous and lawful long residence, contact our immigration barristers and lawyers in London on 0203 617 9173 or via the enquiry form below.
