Visit Visas and 10 Years Long Residence ILR
The 10 years long residence route to indefinite leave to remain (ILR) provides a route to settlement based on continuous lawful residence in the UK for a period of 10 years. This post provides an update in the case law addressing continuous lawful residence requirement for 10 year long residence ILR in light of the case of R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076. Specifically the court considered whether time spent in the UK as a visitor would count towards 10 years continuous residence.
Definition of continuous residence
Paragraph 276A of the Immigration Rules confirms that ‘continuous residence’ for the purposes of paragraphs 276B to 276D and 276ADE and 399A is
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
Continuous residence is not considered broken if the applicant had existing leave to enter or remain when they left and when they returned. The Long Residence Guidance confirms that “if the applicant had existing leave to enter or remain when they left and returned to the UK, the existing leave does not have to be in the same category on departure and return”.
The facts in R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076
Mr Mungur came to the UK in April 2001 on a visit visa valid until September 2001. He left the UK prior to the expiry of his visit visa to make a student visa application from outside of the UK. He re-entered the UK as a student in October 2001. Following a number of applications, Mr Mungur became an overstayer in July 2011.
Mr Mungur applied for indefinite leave to remain in 2019, on the basis of ten years’ continuous lawful residence from April 2001 to July 2011. This was refused on the basis that the Home Office determined that Mr Mungur’s ten years began when he entered as a student in October 2001.
Does a visitor have a clear intention to return?
Mr Mungur argued that when he left the United Kingdom on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of Paragraph 276A(a)(iii). Therefore, his absence between 1 September and 5 October 2001 does not break the period of continuous residence which should be taken as starting on 16 April 2001.
The Home Office argued that Mr Mungur could have had no reasonable expectation of being able to return when he left on 1 September 2001. The Home Office submitted that “the temporary nature of the residence as a visitor means that it falls to be excluded under Paragraph 276A(a)(iii) of the Immigration Rules.”
Lord Justice Stuart-Smith dismissed the Home Office’s argument for four reasons, outlined at paragraph 29 of the judgment, summarised below:
- All visas short of indefinite leave to remain are temporary and require the person to leave the United Kingdom on their expiry;
- The Home Office attempted to persuade the court to “divine” the meaning of the Rules from alleged policy considerations instead of the plain meaning of the words;
- The Home Office argued a policy consideration that the rules cannot have intended residence under a visitor’s visa to count towards continuous residence for the purposes of obtaining ILR or, that a visitor’s expectation of being able to return with the benefit of a different form of clearance cannot be reasonable. The court determined that there is that there is no sign of that policy consideration in the Rules;
- Paragraph 276A(a)(iii) is concerned with the person’s expectation for the future, not the nature of any past lawful residence. The court determined that there is nothing in the fact of having prior clearance as a visitor that affects the reasonableness or otherwise of his expectation that he will satisfy the criteria for a student’s visa.
The Home Office also argued that their interpretation of paragraph 276A(a)(iii) was correct “because otherwise it is of no effect”. However, this argument was also dismissed.
The critical question for the court was whether Mr Mungur had a reasonable expectation at the time of leaving that he would lawfully be able to return. The court determined that the answer depends not upon the nature of his previous residence but on whether he had a reasonable expectation of being granted leave to return. Mr Mungur was required to leave the UK to make his student visa application, which he was then granted. On this basis, the court concluded that Mr Mungur’s expectation when he left the UK prior to his visit visa expiry, that he would be granted the student visa for which he was going to apply, was reasonable.
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