LS Legal News Bulletin
Overview of 10, 14, 20 year and other rules on long residence
Wednesday 14th February 2018
If an individual resided in the United Kingdom for a lengthy period of time, he or she may be eligible to apply for visa or even settlement. We have reviewed below the main routes when a person may be entitled to remain in the UK conditionally or indefinitely.
What is the 10-year rule on long residence?
The Immigration Rules currently enable a person who has spent 10 continuous and lawful years of residence in the UK to apply for Indefinite Leave to Remain (ILR). Not many migrants will normally qualify for residence in this way because it is unusual to have 10 continuous lawful years of residence. And there are quite a few complications and qualifications.
What does 'continuous' mean in long residence applications?
Essentially, continuous residence means residence in the United Kingdom for an unbroken period (including absence from the United Kingdom for a period of 6 months or less at any one time) provided that the applicant has existing visa upon their departure and return. The period is considered to have been broken in few circumstances, including if the applicant has been removed, deported or has left the UK having been refused a visa, has been convicted of an offence and was sentenced to a period of imprisonment, has spent a total of more than 18 months absent from the United Kingdom during the period in question.
As can be seen from this paragraph that leaving and entering the UK is permitted, as long as the person:
1. Has a valid visa when he or she leaves the UK;
2. Does not remain outside the UK for more than six months at any one time; and
3. Has a valid visa when he or she returns to the UK.
Any absence of more than six months will break continuous residence and so will departing the UK in certain circumstances. Total absences of up to 18 months in aggregate over the 10 years is permitted but any more than that will break continuous residence.
A break in continuous residence will in effect restart the clock.
Are absences from the UK permitted for long residence applications?
It can be seen that absences from the UK of up to 6 months are potentially permitted, as long as the person held a valid visa at the time of departure and return (and it does not need to be the same visa, it can be a different one). However, a departure from the UK can lead to continuous residence being broken in certain circumstances.
In particular, the person is not allowed more than 18 months outside the UK in total, which is a period of 540 days. Days of departure and return do not count towards the total; it is only whole days outside the UK which count. However, if absences exceed the allowed limit, the Home Office may deem it appropriate to exercise discretion in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances. Caseworkers are instructed to consider the reason for absences and whether the applicant returned to the UK as soon as they were able. There is little further elucidation of when discretion might be exercised, suggesting that it will be rare.
What does 'lawful' mean?
To succeed under the 10-year rule, the 10 years of residence must not only be continuous, but also lawful. Lawful residence essentially means living in the UK with a valid visa, as is temporary admission (e.g. asylum seekers) or exemption from control (e.g. diplomats) if that status is immediately followed by a visa.
Where a person overstays, even for a short period or even accidentally, this will be unlawful residence. Any period of overstaying at all will usually break a period of continuous lawful residence. However, in certain limited exemptions overstaying may be disregarded, including:
• short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days before 24 November 2016;
• has short gaps in lawful residence on or after 24 November 2016 but the application was made within 14 days of the applicant's leave expiring and there were exceptional circumstances;
• in few other circumstances.
What is the 14-year rule on long residence?
There used to be a rule which allowed a person to qualify for Indefinite Leave to Remain after 14 years of continuous residence in the UK, where the residence could be lawful, unlawful or a mixture of both.
This rule was abolished in 2012 and it is no longer possible to make use of it. It was replaced with the 20-year rule, explained below.
What is the 20-year rule on long residence?
Under the 20-year rule on long residence, a person does not have to have lived in the UK lawfully, but simply 'continuously', including lawfully and unlawfully.
The definition of 'continuous residence' is almost the same as for the 10-year lawful residence route. However, time spent in prison will not break continuous residence. Instead time in prison will simply not be counted towards the period of residence. Time before and after imprisonment can be aggregated to make up the full amount of time.
What prevents a person from qualifying for the 20-year rule?
Where an applicant has had 20 years continuous residence in the UK, their application may only be refused on suitability grounds (generally on grounds of public good) or if their application is not valid (for example, they did not pay the correct fee).
What kind of status does the 20-year rule lead to?
If the application is successful, an individual will be granted a visa for a period of 30 months. It will usually have a condition of 'No Recourse to Public Funds' attached to it. A person will then be eligible to apply for Indefinite Leave to Remain once they have accumulated a period of 120 months (i.e. 10 years) of lawful residence. So, under the 20-year rule, it will be 30 years from entry to the UK before the person is eligible to apply for settlement.
Other rules on long residence
As well as the 10 and 20-year rules on long residence there are some additional long residence rules which are worth mentioning.
7-year residence rule for children and families
A child who has lived in the UK for 7 years might qualify for a visa to stay in the UK, if he or she can show that it would not be 'reasonable' for him or her to relocate abroad. An applicant who has a 'genuine and subsisting parental relationship' with that child should also be able to make an application for a visa as a parent.
Registration as British if born in UK plus 10 years' residence
Under s.1(4) of the British Nationality Act 1981, an individual will be entitled to registration as a British citizen if he or she
1. was born in the UK on or after 1 January 1983;
2. was not a British citizen at birth;
3. has lived in the UK for the first 10 years of his or her life;
4. during that 10 years has not been out of the UK for more than 90 days in any one of those years and;
5. they are of good character.
Immigration Rules also allow applicants aged between 18 and 24 years old who have spent half of their life living continuously in the UK to apply for leave to remain.
Conclusion
The 10 and 20-year long residence rules will not be available to many people as they are quite limited in scope. The 7 and 10-year residence periods for children will be more widely available, but obviously only to children.
How can we Help?
LS Legal Solicitors are experienced in assisting clients with their ILR applications and preparing strong representations to the Home Office, including when the specific requirements may not have been met. We have dealt with the most complicated ILR cases and our success rate with ILR applications in 2017 was 100%. Please contact our firm on 020 81 44 55 88, via email on info@LSLegaLUK.com or use the contact box to discuss your matter or make an appointment.
