Since 11 April 2024, there has been a(nother) new Appendix to
the Immigration Rules: Appendix Long Residence.
The Long Residence indefinite leave to remain
route is for a person who has lived in the UK lawfully and
continuously for 10 years or more. Long had the ‘long
residence’ provisions been hidden in an all but abandoned
section of the numbered Immigration Rules, and this route had been
much litigated in recent years and criticised for a lack of clarity
in drafting.
The new Appendix changes a lot of things about 10 year Long Residence ILR route. Some very
important changes open up the route massively, while others
restrict it significantly.
Changes to the 10 Year Long Residence ILR Immigration
Rules
1. Requirement to have had current permission (where
granted from 11 April 2024) for 12 months or more
The March 2024 Statement of Changes announced the planned
change, and the Explanatory memorandum set out:
Appendix Long Residence includes a policy change whereby
applicants must have had their current permission for one year (or
have been exempt from immigration control within the 12 months
immediately before their application) to qualify for settlement on
this route. This aligns the requirements of this route with wider
requirements for settlement.
Since 11 April 2024, the following rule has therefore been
introduced into the Long Residence Immigration Rules:
LR 11.3. Subject to LR 11.4, the applicant must have had
permission on their current immigration route for at least 12
months on the date of application, or have been exempt from
immigration control in the 12 months immediately before the date of
application.
LR 11.4. If the applicant’s current permission was
granted before 11 April 2024, LR 11.3. does not apply.
As such, the Home Office has decided to reduce flexibility and
potentially delay some 10 Year Long Residence ILR applications. The
effect of rule LR 11.3 will be that some applicants granted
permission after 11 April 2024 will find that they need to wait
some months longer than the tenth anniversary of their entry to
qualify for indefinite leave to remain on grounds of long
residence, so that they meet the requirement of LR 11.3 to have had
permission in their current visa for at least 12 months.
This of course also rules out Long Residence ILR applications by
those who are short-term students and visitors / have other grants
less than 12 months.
Why persons have to have had permission under a current
route rather than simply being granted permission on a route for
more than 12 months is unclear.
2. Qualifying period requirement for settlement on the
Long Residence route
The new Long Residence Rules set out:
LR 11.1. The applicant must have spent a qualifying period
of 10 years lawfully in the UK, for the entirety of which one or
more of the following applied:
(a) the applicant had permission, except permission as a
Visitor, Short-term Student (English language) or Seasonal Worker
(or under any of their predecessor routes); or
(b) the applicant was exempt from immigration control;
or
(c) the applicant was in the UK as an EEA national, or the
family member of an EEA national, exercising a right to reside
under the Immigration (European Economic Area) Regulations 2016
prior to 11pm on 31 December 2020 (and until 30 June 2021 or the
final determination of an application under Appendix EU made by
them by that date).
Under the pre-11 April 2024 Long Residence ILR rules, the last
Long Residence Caseworker Guidance (Version 19.0) published on 05
October 2023 stated:
‘When considering a long residence application, however,
you should apply discretion and count time spent in the UK as
lawful residence for an EU or EEA national, or their family members
exercising their treaty rights to reside in the UK.
Sufficient evidence must be provided to demonstrate that the
applicant has been exercising treaty rights throughout any period
that they are seeking to rely on for the purposes of meeting the
long residence rules.’
As such, it is positive and useful that the Immigration Rules
have incorporated exercise of Treaty rights specifically as
‘qualifying’ for a ten year indefinite leave to remain
application. This is a better and clearer position than having to
rely on caseworker guidance.
Time overstaying in the ten year period breaks continuity
– this was the case immediately prior to 11 April 2024, and
is continued in the new appendix.
LR 11.2. The following periods will not count towards the
qualifying period for Long Residence:
(a) time spent on immigration bail, temporary admission or
temporary release; an
(b) any period of overstaying between periods of permission
before 24 November 2016 even if a further application was made
within 28 days of the expiry of the previous permission;
and
(c) any period of overstaying between periods of permission
on or after 24 November 2016 even if paragraph 39E applies to that
period of overstaying; and
(d) any current period of overstaying where paragraph 39E
applies.
3. Continuous residence requirement for settlement on
the Long Residence route
Paragraph LR 12.1 of the Long Residence rules states as
folllows:
LR 12.1. The applicant must have met the continuous
residence requirement set out in Appendix Continuous Residence for
the entirety of the qualifying period.
Relevant absences where 10 year period starts from 11 April
2024 – 180 days in any 12 months, rather than 548 days
overall
One big and positive change which will benefit many going
forward, will be the way absences are calculated for the purpose of
a 10 year long residence ILR application. The ten year long
residence route famously permitted absences of 548 days (after some
judicial consideration). Going forward, this
is not the case.
The current approach to absences for a 10 year long residence
ILR application is summarised in the Home Office guidance as
follows:
- any single absences started before 11 April 2024 must be no
longer than 184 days; - a 10-year period completed before 11 April 2024 must not have
total absences of more than 548 days – for 10-year
periods which extend beyond 11 April 2024, there is no 548-day
limit (though this does not seem to be wholly accurate
– see transitional information
below); - from 11 April 2024 the applicant must not have been
outside the UK for more than 180 days in any 12-month
period.
This change is likely to be very beneficial for people who came
to the UK as young students, who typically have longer holidays due
to family being overseas.
In accordance with Appendix Continuous Residence,
any period spent outside the UK will not
count towards the period of absence where the
absence was for any of the following reasons:
(a) the applicant was assisting with a national or
international humanitarian or environmental crisis overseas,
providing if on a sponsored route their sponsor agreed to the
absence for that purpose; or
(b) travel disruption due to natural disaster, military
conflict or pandemic; or
(c) compelling and compassionate personal circumstances,
such as the life-threatening illness of the applicant, or
life-threatening illness or death of a close family member;
or
(d) research activity undertaken by a Skilled Worker which
was approved by their sponsor and where the applicant was sponsored
for a job in one of the following SOC 2020 occupation
codes:
- 2111 Chemical scientists
- 2112 Biological scientists
- 2113 Biochemists and biomedical scientists
- 2114 Physical scientists
- 2115 Social and humanities scientists
- 2119 Natural and social science professionals not elsewhere
classified - 2161 Research and development (R&D) managers
- 2162 Other researchers, unspecified discipline
- 2311 Higher education teaching professionals; or
(e) research activity undertaken by a person on the Global
Talent route who was endorsed by:
- (i) The Royal Society; or
- (ii) The British Academy; or
- (iii) The Royal Academy of Engineering; or
- (iv) UKRI; or
(f) research activity undertaken by a person on the Global
Talent route who qualified on the basis of a prize listed in table
6 of Appendix Global Talent: Prestigious Prizes; or
(g) for an applicant under Appendix Settlement Family Life,
absences for work, study or supporting family overseas, so long as
the family have throughout the period of absence maintained a
family life in the UK and the UK remained their place of permanent
residence; or
(h) where the applicant’s partner is absent from the UK
on Crown service as:
- (i) a regular member of HM Armed Forces (the Royal Navy,
the Royal Marines, the Army (including the Brigade of Gurkhas) and
the Royal Air Force); or - (ii) an employee of the UK Government, a Northern Ireland
department, the Scottish Administration or the Welsh Government;
or - (iii) a permanent member of the British Council, and the
applicant accompanies them overseas.
As such, excess absences, such as for COVID reasons, would not
break continuity for the purpose of a long residence ILR
application. Also, Appendix Continuous Residence specifies that
time in the Channel Islands / Isle of Man is not treated as time
spent in the UK for the purpose of Appendix Long Residence.
Transitional provisions
This is not all good news, however – the more generous
absence provisions are not being retrospectively applied. While
there will be greater absences permitted for applicants going
forward, those approaching the end of the ten year period now will
still have to factor in the 548 day maximum absence in relation to
their pre 11 April residence.
CR 2.2A. Where the application is under Appendix Long
Residence, for any qualifying period before 11 April 2024, the
applicant must not have been outside the UK for more than 184 days
at any one time, and must not have spent a total of more than 548
days outside the UK during that qualifying period, subject to CR
2.3.
These transitional arrangements are somewhat confusing across
the Rules and guidance, but preserve the position that continuous
residence will be broken if an applicant has been absent from the
UK for more than 184 days at any one time or for more than a total
of 548 days overall, where that absence started before 11 April
2024.
If your time abroad began before 11 April
2024
During the 10-year qualifying period, you do not have continuous
residence if you were abroad for more than:
- 548 days in total
- 184 days in any 12-month period
For any absences that commence after 11 April 2024, the 180 day
maximum absences in 12 months applies.
A further restriction is emphasised in the new long residence
guidance, which sets out:
Paragraph CR 6.1. of Appendix Continuous Residence
sets out that the continuous residence periods will be
calculated by counting back from the relevant date.
This means that
an applicant cannot rely on a historic 10-year qualifying
period, outside of the limits defined in CR 6.1.
See more detail in the Continuous residence guidance.
Paragraph CR 6.1 sets out:
The continuous residence periods in CR 2.1, CR 2.2. and CR
2.2A. will be calculated by counting back from whichever of the
following dates is the most beneficial to the applicant:
(a) the date of application; or
(b) any date up to 28 days after the date of application;
or
(c) the date of decision; or
(d) for a person applying for settlement on the UK Ancestry
route, the date of their last grant of permission.
This means that the unique and useful feature of a long
residence ILR application being possible on a historic basis has
ended. This was often a useful application for persons who had
accrued long periods of residence but, for whatever reason, never
made an application.
4. Knowledge of English and Life in the UK for
settlement on the Long Residence route
This still requires the Life in the UK test to be passed, but
makes English language slightly easier as Appendix English Language
permits reliance on GCSE / A-Levels.
Conclusions
Overall, the changes to the rules allowing for indefinite leave
to remain based on 10 years long residence will genuinely make
settlement very much easier to achieve for many young students and
those with high absences across a lengthy period.
Importantly, the changes, however, are intentionally penalising
people who had not previously submitted an application but who had
accrued a historic ten year period of residence meeting the old
long residence rules.
In removing the ‘historic’ ten year ILR optionality, the
Home Office has removed a useful quirk for many people. In recent
years, this has often been a route which benefitted EU citizens as
they were historically less likely to have obtained documentation
than other migrants, not being subject to immigration control until
Brexit. With the closure of the historic ten year ILR option
combined with the difficulty in submitting ‘late’ EU
Settlement Scheme applications since August 2023, the Home Office
is effectively closing many routes for EEA citizens who had
long-standing UK ties.
Long residence ILR applications going forward will need to be
considered carefully so that all relevant requirements are met and
the transitional provisions properly understood.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Big #Year #Long #Residence #ILR #Rules #General #Immigration
