Applying for ILR under the 10 year rule: the continuous residence requirement
Paragraph 276A of the Immigration Rules states that continuous residence means residence in the UK for 'an unbroken period'. Certain events, such as absences from the UK for extended periods, being removed from the UK or receiving a custodial sentence may break the period of continuous residence.
Absences from the UK
Absences from the UK for a period of six months or less at any one time will not break the continuous residence requirement, provided that the applicant had existing leave to remain upon their departure and return.
For example, for an applicant who had existing leave to remain in the UK as a Tier 4 (General) student when they left the UK and returned to the UK in a different category, for example as a Tier 2 (General) Migrant, continuous residence will not be considered to have been broken.
However, continuous residence will be considered to be broken if:
- they have been absent from the UK for a period of six months or more at any one time;
- They have spent a total of more than 18 months outside the UK throughout the entire ten year period;
- They have been absent from the UK for a period of six months or less, but does not have valid leave on their departure or return to the UK;
- At the time of leaving the UK the applicant demonstrates a clear intention that they will not return to the UK.
Once a person has established a period of 10 years continuous lawful residence then there is no limit on the length of time afterwards when they can apply, provided that they continue to reside in the UK lawfully. This means that a person can accumulate 10 years continuous lawful residence, leave the UK and then re-enter at a later date to apply for settlement based on a 10 year period that they have built up in the past.
Where an applicant receives a custodial sentence and is detained in a prison, young offender's institution or a secure hospital, continuous residence will be considered to have been broken.
If an applicant receives a suspended custodial sentence, and the custodial sentence is not activated, this will not have the effect of breaking a period of continuous residence.
Removal from the UK
If an applicant is removed from the UK by way of directions under the Immigration Act 1971 or the Immigration and Asylum Act 1999, they have been deported from the UK or they have left the UK having been refused leave to enter or remain, then residence in the UK is considered to have been broken.
For further advice relating to the continuous residence requirement under the Immigration Rules or applying for ILR under the 10 year rule then contact our London immigration barristers on 0203 617 9173 or by email email@example.com.