ILR Long Residence Based On Historic 10 Year Residence In the UK
Non-UK citizens who have built up a period of 10 years’ continuous lawful residence in the UK may qualify for indefinite leave to remain on long residence grounds subject to meeting all the requirements set out in Paragraph 276B of the Immigration Rules. For those who have built up a period of lawful continuous residence of more than 10 years, one of the key considerations is whether there is a time limit on their entitlement to 10 year route to settlement. Put another way, can a non-UK citizen apply for ILR long residence based on a period of 10 years’ continuous lawful residence they built up in the past?
Relying on Historic Long Residence to Apply for ILR
Paragraph 276B of the Immigration Rules simply states that an applicant can apply for indefinite leave to remain is he “has had at least 10 years continuous lawful residence in the United Kingdom”. The Immigration Rules do not specify whether the 10 years’ continuous lawful residence need to have been accumulated immediate before the date of application for ILR or whether a historic period of 10 years’ continuous residence can also be relied upon to apply for ILR on long residence ground.
The UK Visas and Immigration’s published policy guidance suggests that once an applicant has built a period of 10 years’ continuous lawful residence, there is no time limit on when they can apply for ILR on 10 years basis. As a result, an applicant who has spent a 10-year period of lawful continuous residence in the UK could leave the UK and re-enter at a later time with valid leave and apply for ILR on the basis of the 10 years they previously spent in the UK.
Therefore, once an applicant has built up a period of 10 years’ lawful continuous residence in the UK, their eligibility for ILR long residence does not extinguish even if the applicant has been away from the UK following completion of 10 years’ continuous residence. It is worth noting, however, that if an application for ILR is submitted based on past 10 years’ lawful continuous residence, following the applicant’s entry to the UK after a period of absence, they must demonstrate that they returned to the UK with valid leave.
The Guidance further confirms that the Immigration Rules would not prevent an applicant from relying on a period of continuous lawful residence even if they had relied on that period of continuous lawful residence in a previous application.
Calculating Continuous Lawful Residence
Paragraph 276A of the Immigration Rules defines lawful residence as a period of continuous residence where the applicant lived in the UK with one of the following:
- existing leave to enter the UK or remain in the UK;
- temporary admission within section 11 of the 1971 Immigration Act where leave to enter or remain is subsequently granted;
- an exemption from immigration control, including where an exemption is followed by a grant of leave to enter or remain.
To qualify for ILR on long residence ground, an applicant must demonstrate to the UK Visas and Immigration that:
- They have not spent more than 6 months away from the UK at any one time during the relevant 10 year period of continuous lawful residence;
- They have not been absent from the UK for a total period of 18 months during the relevant 10 year period of continuous lawful residence;
They had valid leave at the time of leaving the UK and applied for entry clearance within 28 days of that leave expiring.
How Many Days Does 18-month Amount to?
The UK Visas and Immigration’s published Policy Guidance states when calculating absences from the UK for the purposes of ILR Long residence, a month equals 30 calendar days. Accordingly, the prevailing practice for the UK Visas and Immigration until recently was to compute 18 months as being equivalent to 540 days of absence on the basis that a month is equivalent to 30 days. Consequently, the UKVI would ordinarily refuse applications for ILR where the applicant had been absent from the UK for more 540 days.
The UKVI’s approach to calculating absences in this manner was challenged by the Upper Tribunal in the recent case of Chang (paragraph 276A(a)(v); 18 months?)  UKUT 65 (IAC) In Chang, the Upper Tribunal Judge Rintoul ruled that the UKVI’s position, that absences of 18 months in total amount to 540 days, was wrong because it failed to account for the fact that the number of days in a month varies from 28 to 31 days. He went on to find that, using a common sense approach, a period of 18 months should be strictly treated as a year and a half, and that on average an 18 months period would be equivalent to 548 days.
The Upper Tribunal reached its findings on the basis of the settled legal principle as established in R (Alvi) v Secretary of State for the Home Department  UKSC 33) that the UKVI cannot introduce immigration requirements through its published policy guidance; they must be set out in the Rules. It was also found in Alvi that where ambiguity arises from provisions of the Immigration Rules, the matter should be resolved in the applicant’s favour. Accordingly, UTJ Rintoul found in Cheng (paragraph 32) that “Applying Alvi to this case, I consider that what the guidance is seeking to do when defining 18 months as 540 days is the creation of a rule, and thus is not permissible.”
As a result of the Upper Tribunal’s judgment in Chang, applicants who exceed the permitted level of absences by a small margin can apply for ILR on long residence ground.
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