Applying for ILR under the 10 year rule: the lawful residence requirement

Applicants who intend to make an application for settlement in the UK having resided in the UK continuously and lawfully in accordance with paragraph 276B of the Immigration Rules must demonstrate that they have in fact acquired a period of ten years lawful residence.

Lawful Residence

Paragraph 276A (b) of the Immigration Rules defines lawful residence as meaning continuous residence pursuant to:

a) Existing leave to enter or remain;
b) Temporary admission within section 11 of the Immigration Act 1971 where leave to enter or remain is subsequently granted; or
c) 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.

Complications arise where there are gaps in lawful residence which have occurred, for example, as a result of submitting an application after the expiry of leave to remain, but where that application later results in the grant of leave to remain.

Periods of temporary admission will only qualify as lawful residence if leave to enter or remain is then later granted. So, for example, if an applicant is granted leave following a period of temporary admission, the time on temporary admission counts as lawful residence.

Breaks in lawful residence

The Home Office’s own policy guidance provides a small margin of discretion to overlook breaks in lawful residence in limited circumstances. The Home Office has confirmed that discretion may be exercised to grant an application if an applicant:

a) Has short gaps in lawful residence through making applications out of time by no more than 28 calendar days; and
b) Meets all the other requirements for lawful residence.

Discretion may be exercised where a single application was made more than 28 days late, but only where there are exceptional reasons as to why the application was made late. The Home Office provides the following examples of exceptional reasons: a) a postal strike, b) hospitalisation, or c) an administrative error made by the Home Office.

In any event, the Home Office must be satisfied that the applicant has acted lawfully throughout the whole ten year period and has made every effort to obey the Immigration Rules.

For further advice or assistance with an application for indefinite leave to remain under the 10 year ILR rule, contact our immigration barristers in Covent Garden, London on 0203 617 9173 or by email: info@richmondchambers.com.