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The case of Stoly Jankovic: what are the 10 and 20 year rules on long residence?

The case of Stoly Jankovic: what are the 10 and 20 year rules on long residence?

The case of Stoly Jankovic recently attracted a lot of press attention and a great deal of sympathy. He had apparently been living and working in the UK since 1991, for a period of 26 years. How can it be right that he be detained for removal after all that time? Well, the rules on acquiring lawful status after long residence are very tightly drawn and it sounds as if he has fallen foul of them.

I have been meaning to write a post on the long residence rules for as long as I can remember, and this seems like a good opportunity.

How did Mr Jankovic find himself in this predicament?

Before going further, it is never safe to assume what you read in the papers about an immigration case is necessarily accurate.

That said, The Guardian reports the background thus:

He blamed his situation on his failure to properly understand and deal with Home Office bureaucracy. “I ended up in this mess because I couldn’t fill out my indefinite leave to remain form properly,” he said. It is understood he applied for asylum when he arrived in the UK and was refused, and that his leave to remain expired in 1999, but he has since been working and paying taxes without problem.

It is also reported that Mr Jankovic has been reporting to the Home Office for 10 years and was detained with no notice. Following (but not necessarily because of) the intervention of his Member of Parliament, Keir Starmer MP, Mr Jankovic was released from detention after a period of 4 days and told that he would not be removed for a period of at least 14 days.

It may be possible that Mr Jankovic claimed asylum and was refused, has not held lawful status since then but nonetheless has missed several opportunities to obtain Indefinite Leave to Remain. For example, he might potentially have qualified under the “Legacy” backlog clearance exercise and might also potentially have qualified under the previous now-abolished 14 year long residence rule. This is guesswork, though.

What is the 10 year rule on long residence?

Paragraph 276B of the Immigration Rules enables a person with 10 continuous and lawful years of residence in the UK to apply for Indefinite Leave to Remain. Not many migrants will qualify for residence in this way because it is unusual to have 10 continous lawful years of residence. And there are complications and qualifications.

What does “continuous” mean in long residence applications?

Paragraph 276B does not stand alone; other nearby paragraphs define some of the words and terms used. Paragraph 276A(a) sets out the definition of “continous” for the purposes of paragraph 276B and the other long residence and private life rules.

(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

We can see from this paragraph that leaving the UK is broadly permitted, as long as the person:

1. Has leave when he or she leaves;

2. Does not remain outside the UK for more than six months at any one time; and

3. Has leave when he or she returns.

Example

Robert is from the USA. He has leave as a student in the UK valid until 4 October 2014. He departs voluntarily on 6 October 2014, 2 days after the expiry of his leave. He applies for a new student visa from the USA, which is granted, and returns to the UK on 31 October 2014.

Although Robert was not out of the UK for more than six months, he left the UK at a time when he had no leave. This means that the continuity of his residence is broken. If intending to make an application for indefinite leave to remain following 10 years continuous residence in the UK in the future, Robert will only be able to “start the clock” from 31 October 2014.

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, as discussed below.

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 leave at the time of departure and return (and it does not need to be the same grant of leave, it can be a different one). However, a departure from the UK can lead to continuous residence being broken in the circumstances set out at subparagraphs (i) to (v).

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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.

There is an important Home Office policy on long residence cases which covers some situations which seem to fall outside the rules. For example, the policy states that where there are absences in excess of 540 days:

it may be appropriate to exercise discretion over excess absences 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.

Example

Matt is from Chile. His family is wealthy and he was sent to the UK to be educated from age 11. He attended a private boarding school then went to university and achieved a first class degree in engineering. He has been living in the UK for 12 years in total.

However, Matt did not remain in the UK in school holidays when he was a child; he returned home to stay with his parents. His total absences from the UK exceed 540 days. The fact that these absences were beyond his control, occurred when he was a child and were for a very good reason are irrelevant under the rules and Matt cannot succeed under the rules.

It is possible that discretion might be exercised in Matt’s favour under the policy, although it does not seem likely as the circumstances are not “compassionate” as such.

He might be able to succeed on a human rights claim, although it is likely to require an appeal.

What does “lawful” mean?

To succeed under the 10 year rule, the 10 years of residence must be continuous and lawful. “Lawful residence” is defined at paragraph 276A(b) as:

“lawful residence” means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

So, living in the UK with leave to enter or remain is lawful for the purposes of a long residence application, as is temporary admission (e.g. asylum seekers) or exemption from control (e.g. diplomats) if that status is immediately followed by leave.

Example

Nora is a refugee. When she claimed asylum she was granted temporary admission. Because her case was complex, no decision was made on her case for four years. This is unusual but does sometimes occur. When a decision was finally reached she was refused asylum. She appealed. All the way through the application and appeal process her status continued to be temporary admission.

Nora’s appeal was eventually allowed after two years and she was recognised as a refugee. She was granted five years of leave. Before the expiry of that five year period, Nora will be eligible to apply for indefinite leave to remain under the 10 year rule because she was on temporary admission and was then immediately granted leave.

Where a person overstays, even for a short period or even accidentally, this will be unlawful residence. On the face of it, any period of overstaying at all will break a period of continuous lawful residence. However, there is a policy which may assist in some cases and which allows limited exceptions to be made.

Is it possible to qualify under the 10 year rule even if there are gaps in lawful residence?

The Home Office Long Residence guidance confirms that an application may be granted even when there are periods of overstay, provided the applicant:

has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016

has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules

meets all the other requirements for lawful residence

Paragraph 39E, in turn, states:

This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

Example

Ono is a student from Nigeria. He has been living and studying in the UK for 10 years and he wants to make an application for indefinite leave to remain under the 10 year rule.

It turns out that on two occasions, Ono has unwittingly overstayed. The first time was in September 2014. Ono’s student leave expired on 3 September 2014 but he did not obtain a new CAS until 5 September 2014. He applied for student leave on 6 September 2014, and this was granted.

On 30 November 2016, Ono’s student leave expired. He applied for leave to remain as a spouse on 4 December 2016. He could not apply before because he was admitted in hospital following an emergency and was only released on 3 December. Although he applied after the expiry of his leave, the Home Office granted his application in accordance with paragraph 39E because it was submitted within 14 days of the expiry of his leave the Home Office considered there was a good reason for the delay in his application.

Provided he meets all the other requirements for indefinite leave following 10 years lawful residence, Ono’s application should succeed. The first period of overstay should be disregarded because he applied less than 28 days after the expiry of his previous leave, and the overstay ended before 24 November 2016. The second period of overstay should be disregarded because the gap was after 24 November 2016 however Ono was granted leave in accordance with paragraph 39E.

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In addition, the long residence guidance instruct caseworkers to consider exceptional circumstances when the period of overstay was longer than 28 days and prior to 24 November 2016.

There does not appear to be an equivalent provision when the period of overstay was longer than 14 days after 24 November 2016.

The guidance goes on to confirm that:

The threshold for what constitutes ‘exceptional circumstances’ is high, but could include delays resulting from unexpected or unforeseeable causes. For example:

  • serious illness which meant the applicant or their representative was not able to submit the application in time – this must be supported by appropriate medical documentation
  • travel or postal delays which meant the applicant or their representative was not able to submit the application in time
  • inability to provide necessary documents – this would only apply in exceptional or unavoidable circumstances beyond the applicant’s control, for example:
    • it is the fault of the Home Office because it lost or delayed returning travel documents
    • there is a delay because the applicant cannot replace their documents quickly because of theft, fire or flood – the applicant must send evidence of the date of loss and the date replacement documents were sought

If an applicant does not fall into one of the exceptions above, a period of overstay will mean that the “10 year clock” will need to restart from the time immediately after the overstay.

Example

Lara has leaved in the UK since 10 May 2007. She has always been lawfully present except for one period of overstay between 4 January and 8 March 2010. Lara’s leave expired on 3 January 2010 and she did not submit an application until 7 February 2010, more than 28 days after the expiry of her leave. That application was granted on 8 March 2010.

Lara’s has a gap in her lawful residence and need to start the 10 year clock from 7 February 2010. Provided she continues to be lawfully present in the UK until then, she will be eligible to apply under the 10 year rule on 7 February 2020.

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 continous residence in the UK, where the residence could be lawful, unlawful or a mixture of both.

The 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?

What kinds of residence qualify for the 20 year rule?

The 20 year rule on long residence is contained at paragraph 277ADE(1)(iii) of the Immigration Rules. Under the 20 year rule, a person does not have to have lived in the UK lawfully, but simply “continuously”.

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.

Example

Alan has lived in the UK since 1 July 1995. He was in prison between 2 August 1997 and 2 November 1997. Alan cannot count the period between 2 August and 2 November 1997 towards the 20 years residence. However, he can count the time before and after. Alan has spent 2 years and 1 month in the UK prior to 2 August 1997; and needs a further 17 years and 11 months to have 20 years residence. He will be eligible to apply under the 20 year rule on 2 July 2018, 17 years and 11 months after 2 November 1997.

What prevents a person from qualifying for the 20 year rule?

The only requirements to meet under the 20 years rule are:

  1. not falling for refusal under Section S-LTR.1.2-2.3 and S-LTR.3.1 of Appendix FM, known as “the suitability grounds”;
  2. making a valid application for leave; and
  3. having lived continuously in the UK for at least 20 years

Therefore, 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 limited leave to remain 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) 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

Under paragraph 276ADE(1)(iv) of the Immigration Rules, a child who has lived in the UK for 7 years might qualify for limited leave to remain, if he or she can show that it would not be “reasonable” for him or her to relocate abroad. Under paragraph EX.1 of the Immigration Rules, an applicant who has a “genuine and subsisting parental relationship” with that child should also be able to make an application for leave to remain as a parent. You can read more about this route in this previous blog post.

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 citizens 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.

The Home Office has discretion to allow an application even where absences exceed 90 days in any one year or more of these 10 years. Guidance on when discretion will normally be exercised is contained in Chapter 8 of the Nationality Instructions and are as follow:

We should normally waive excess absences:

• if the number of days absent from the UK in any one of those years does not exceed 180 days, and the total number of days absent over the 10 year period does not exceed 990 days; or

• (if the number of days absent exceeds 180/990 respectively) the excess absence is the result of circumstances beyond the family’s control (e.g. a serious illness)

We should not normally waive excess absences over the 180/990 day limit simply because:

• the applicant’s parents were unaware of the requirements; or

• the parent’s absences, with the person, were entirely voluntary

The guidance regarding good character is found at Annex D of Chapter 18.

Example

Maja was born in the UK on 19 August 1992. Her parents were not British citizens and never had leave in the UK. They never left the UK until 2005, when the whole family relocated to Albania.

Maja is now 25 years old and continues to live in Albania. Provided she can meet the good character requirement, Maja is entitled to make an application to register as a British citizen, as she was born there after 1 January 1983, lived in the UK for the first 10 years of her life, and was never absent for more than 90 days in any one of those 10 years.

The “half of life” rule for under 25s

Immigration Rule 276ADE(1)(v) 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.

Example

Patrick came to the UK from Ghana with his parents at the age of 4. He is now 20. Half of Patrick life is 10 years. Patrick has lived in the UK for 16 years. Patrick has therefore lived in the UK for more than half his life in the UK, and can apply for leave to remain under this rule.

However, applications can still be refused on the basis of too many absences from the UK during that time or on various public good grounds.

The “very significant obstacles to integration” rule

Paragraph 276ADE(1)(vi) allows those who do not meet any of the above rules to apply for leave to remain where there would be

very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

There is guidance on what will constitute very significant obstacles in the Immigration Directorate Instructions. The extracts below illustrate how high the test is, at least as far as the Home Office is concerned, and how the Home Office is very rarely inclined to grant applications on this basis:

When assessing whether there are “very significant obstacles to integration into the country to which they would have to go if required to leave the UK”, the starting point is to assume that the applicant will be able to integrate into their country of return, unless they can demonstrate why that is not the case.

[…]

Where there are no family, friends or social networks in the country of return that is not in itself a very significant obstacle to integration. Many people successfully migrate to countries where they have no ties.

[…]

Where there is credible evidence that an applicant cannot speak any language which is spoken in the country of return, this will not in itself be a very significant obstacle to integration unless they can also show that they would be unable to learn a language of that country, for example because of a mental or physical disability.

Judges might potentially take a more reasonable view. In the case of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 Sales LJ held:

In my view, the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.

So, the 10 and 20 year long residence rules will not be available to many people as they are quite limited in scope. Nevertheless, Stoly Jankovic would seem likely to be one of those people. The 7 and 10 year residence periods for children will be more widely available, but obviously only to children.


With thanks to Nath Gbikpi for her assistance with this post.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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