Our Immigration system is constantly changing, and earlier this year, the United Kingdom saw a big change in the Immigration Rules which will affect applicants applying for Indefinite Leave to Remain (“ILR”) on the basis of their long residence.
Whilst the changes were introduced to make the definition of what constitutes lawful residence under the long residence rules clearer and easier to understand for applicants, it can be argued that the wording of the new rules is still ambiguous with certain definitions.
We have outlined the recent changes to long residence applications below.
What is a long residence application?
A long residence application is an application for ILR (also referred to as settlement or permanent residence) based on 10-years of continuous and lawful residence in the United Kingdom.
Long residence applications can be made up of 10 years leave on the same visa route, or a combination of different visa routes, unlike applying for ILR after 5-years which usually requires the 5-year period to be under the same visa category (although there are some exceptions to this).
The long residence route is popular with those who have spent a large amount of time in the United Kingdom as a Student, as this route does not lead to settlement within 5 years.
The main requirement for long residence applications is to demonstrate lawful and continuous residence in the United Kingdom.
Definitions:
Lawful residence:- Residence which is continuous residence pursuant to having existing leave to enter or remain in the United Kingdom (i.e. a valid visa). Residence in the United Kingdom is also considered lawful when applications are submitted ‘in-time’, as well as appeals lodged ‘in-time’ as applicants are protected under 3C Leave.
Continuous residence:- Residence in the United Kingdom for an unbroken period. In the context of long residence applications, 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 to the United Kingdom.
In addition to not spending a period of at least 6 months outside the UK, long residence applicants must also not spend a total of 18 months outside the UK throughout the whole 10 year qualifying period.
Once your long residence application is granted you will have ILR, meaning you are free from immigration restrictions and no longer subject to immigration control. However, it is worth noting that ILR can lapse if you spend more than 2 years continuously outside the UK. ILR may also be revoked if you are subject to criminal proceedings.
What are the new changes to long residence applications?
Further to the Statement of Changes in Immigration Rules which was published on 9th March 2023, new Rules have now come into force for long residence applications made on or after 12th April 2023.
For applications made on or after 12th April 2023, long residence applicants can no longer rely on leave as a visitor under Appendix A, short-term student or seasonal worker as lawful residence. There is still some ambiguity however as to whether non-visa nationals constitute being a visitor under Appendix A. There are sections of the policy guidance that appear to contradict the rules, so it will be interesting to see how the Home Office considers certain applications in the future.
Lawful residence also now does not include time spent on temporary admission, temporary release and immigration bail towards lawful residence.
Additionally, UK Visas and Immigration (“UKVI”) has clarified that a period of 6 months equates to 184 days and 18 months equates to 548 days, which is useful for applicants when calculating continuous residence.
In conclusion, the latest updates to long residence applications demonstrate a further tightening of the United Kingdom’s Immigration Rules, whilst simultaneously creating more confusion over the wording of the rules. The main take away for long residence applicants is to ensure that you have had valid leave to enter or remain for the whole 10-year period, without breaking continuous residence or the revised definition of lawful residence. This may be easier said than done for those reaching the 10-year mark, who may have previously sought to rely on periods as a visitor during their qualifying period.
If you wish to talk to us about your Long Residence (Indefinite Leave to Remain) application, please contact our friendly team of London immigration lawyers at Barar & Associates at barar.london@bararassociates.co.uk or call us on 020 7487 8370. You can access more information about us at https://bararassociates.com/
