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Long residence rules

Long residence rules

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

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.

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