Long residence rules

Free Movement — 

UPDATE: the seven year children rule has been scrapped. Read more here.

There are two immigration rules that can be used to acquire settlement (Indefinite Leave to Remain, or ILR) after a long period of residence in the UK. There is also a third option, which I will also mention.

The first is the 10-year rule, which is for those who have been continuously and lawfully resident in the UK for ten years or more. See rule 276B for the criteria and rule 276A for the definitions of ‘lawful’ and ‘continuous’. Often this will have come about by various extensions of visas in different capacities. Typically those eligible might include students on a succession of courses, such as pre-degree, degree and post-degree, or who studied for several years then switched to an employed capacity.

The reason I am writing this post is to say that additional guidance just very quietly emerged from the Home Office for this type of application. It states that short absences abroad of less than six months where continuity of leave to enter/remain was broken will not necessarily count against an applicant. For example, if a person was present in the UK as a student on one course, left the UK, his or her leave subsequently expired but he or she re-applied and re-entered the UK again before six months elapsed from the date of departure from the UK, that person will still be eligible to apply under the 10 year rule.

Photos in Eighties gear can be helpful

Photos in Eighties gear can be helpful

The second long residence rule is the 14-year rule, also covered by rule 276B. The residence in the UK needs to be continuous, but need not be lawful. For example, original illegal entry or overstaying do not count against an applicant. The rule exists to regularise illegal long term residents, basically. Where enforcement action was started against a person within the 14 years, they cannot apply, however. This means that most asylum seekers will never be eligible as enforcement action includes the setting of removal directions and the service of illegal entry papers. The main beneficiaries are likely to be overstayers and others who have never come to the attention of the authorities.

Of course, proving that one has been continuously present in the UK for 14 years when one has not come to the attention of the authorities at any point can be somewhat problematic. Photos of the applicant dressed in eighties gear can be helpful, as are GP or school records and statements from friends or family, or even employers if they are willing.

The last ‘rule’ is actually a concession outside the rules and applies to the families of children who have been resident in the UK for seven years or more. The Home Office take the view that it is disproportionate to remove a child who has settled here for that long, so ILR will be granted to the child and parents. Immigration lawyers differ on how to go about securing status under this concession. An application can be made with the accompanying exhorbitant fee, or a letter can simply be written to the Home Office setting out the facts. Because it is a concession rather than a rule, most lawyers probably agree that an application is not the right way forward in principle, but it can serve to move things along.

Lastly, none of these rules or concessions is absolute: criminal offences or particularly serious evasion of immigration control will render a person ineligible.

Free Movement

Free Movement

Posts Facebook

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

51 responses to Long residence rules

  1. Hi ya, just wondering what will happen to this “long residence” rule once Borders, Citizenship and Immigration Act has been fully implemented? Will the “long residence” rule survive?

    • No-one really knows. Personally, I suspect that the long residence rules may well be withdrawn at some point in the next months or years, but I have no basis for that other than seeing what happened to DP3/96 and the 7 year child rule. They are very sensible rules to have (although arguably too long) but that won’t necessarily save them!

    • Thanks for the prompt reply.

      I got another question in relation to this long residence too. We all know that 10 year rule is including “lawful” stay in this country. Can “post-study” work include as qualifying period as well because the home office website said it does not lead to settlement.

      And thinking ahead, I wonder how this whole “post-study” work will work in the 2009 act (in terms of qualifying period).

      Feel free to comment.

  2. iam wondering if the form t application that allows children of migrants to apply to the secretary of state to be considered for british citizens (after 10years now) will not be scraped. wants to know if it is in part of the uk immigrtion law or just like the 7 year residence as well. would very much like to know

    • That’s very different to the long residence immigration rules. It is a nationality law and is set out in primary legislation. The Home Office has no plans to change it and would have to pass an Act of Parliament to do so, for which there would be considerable warning. There is actually a nationality Bill being considered by Parliament at the moment, but it would not make any change to this part of the law.

  3. re: long residence – 10 year rule
    Hi there,
    thanks very much for offering great advise in the site.
    my question is how the discretion is exersised if one spent 7 years on a student visa and the rest three with a retained right of residence (married to EEA National, then divorced but retained the right of residence under EU regulations). the home office website states that the discretion may be exercised to count those years as if it were continuous and legal residence.
    does this actually mean yes or no and how would this be implied?
    thanks so much for your help!
    George

    • Sorry George, but there’s not much I can add to what the policy says. It sounds like you need legal advice, which I can’t provide direct to the public. The policy does sound helpful to your situation though. The problem is that there are few, if any, certainties with the Home Office and even good, solid applications sometimes get rejected for daft reasons.

  4. Thanx for such a wonderful information. FM, I’ve been in UK for 10 years coming February 2010. My problem is that I stayed in africa for
    6 months, 2 days due to my mums illness (20th Feb 2000 to 22 August 2000 but the visa was ok). Other than that everything is ok. Just want to find out whether I can apply for the 10 years residency.

Trackbacks and Pingbacks:

  1. Seven year children policy withdrawn « Free Movement - 10 December 2008

    [...] to remain along with the rest of his or her family. You can read the Free Movement post about it here, although it is now mainly of historical [...]

  2. Long residence again « Free Movement - 2 February 2009

    [...] by freemovement on 2 February 2009 I posted on this relatively recently but another important judgment has just come out: ZH (Bangladesh) v [...]

  3. More long residence case law « Free Movement - 27 January 2010

    [...] is not the first time long residence has been covered on this blog. See here for other relevant [...]

  4. 2010 in review « Free Movement - 4 January 2011

    [...] Long residence rules November 2008 47 comments 4 [...]