Long residence: what to do if you are worried about a “break” in your residence
23 June 2010
The UK Long Residence visa category was initially born as a concession to allow for a discretionary grant of settlement after 10 years of continuous lawful residence or 14 years continuous residence of any legality in the UK. However, in April 2003, the concession was incorporated into the UK Immigration Rules under paragraph 276A-D following the provisions of the Nationality, Immigration and Asylum Act 2002.
We often advise and assist applicants who are concerned about possible breaks in their continuous residence. Therefore, it is important to address both the issue of what might be deemed a "break" and the scope of "discretion" which the UK Border Agency might exercise in favour of an applicant.
Continuous residence is NOT broken as long as the applicant has existing limited leave to enter or remain upon their departure and return in the UK. Paragraph 276 (a) (i) to (v) also details circumstances in which the continuous residence is considered to be broken such as when the applicant:
- is absent from the UK for a period of more than 6 months at any one time;
- is absent for a shorter period but does not have valid leave to enter or remain on their departure from and return to the UK;
- has been removed or deported from the UK or has left the UK following the refusal of leave to enter or remain;
- has been convicted of an offence and sentenced to a period of imprisonment, or, was directed to be detained in an institution other than a prison (e.g. hospital, young offenders), provided that this was not a suspended sentence;has spent a total of 18 months outside of the UK throughout the entire 10/14 years period.
The most common reason to fear a break in residence occurs when a migrant fails to make an in-time application and as a result, he/she applies after the expiry of his/her leave to remain in the UK. In this case and depending on their specific circumstance and immigration history, there is still an opportunity to make an application. The Immigration Directorate Instructions state that caseworkers should apply their discretion or refer the case to a senior official in the following instances:
"If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time), caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.
It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence due to submitting more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring they have maintained lawful leave throughout their time in the UK.
It may be appropriate to use your judgement in cases where an applicant has submitted a single application more than 10 days out of time if there are extenuating reasons for this (e.g. postal strike, hospitalisation, administrative error on our part etc)."
Therefore, discretion would normally be applied if an applicant can show his/her commitment to have remained lawfully in the UK while exceptional circumstances beyond the migrant's control and length of time following the expiry of his/her lave should also be taken into consideration.
However, each application will be decided on it's own merits. We recommend that anyone who is concern about possible break in their long residence seeks professional legal advice.