If you have built up a period of long residence in the UK, you might be able to apply for settled status (otherwise known as indefinite leave to remain).
Some UK immigration routes provide their own “route to settlement”. For example, if you have a partner visa, you might be eligible for settled status after 5 years of continuous residence in that category.
However, other immigration categories, such as Tier 4/Student or Tier 5 temporary worker, do not provide that option.
This is where the “long residence” category comes in.
Settlement
Under paragraph 276B of the Immigration Rules, you can apply for settled status in the UK if:
- you have 10 years of “continuous lawful residence” in the UK
- you have passed the Life In The UK Test
- you have passed an approved English test at B1 level
“Lawful residence” is time when you had valid permission to enter or stay in the UK. This can be in any immigration category, including as a visitor. It can also include:
- periods of temporary admission or immigration bail if you were granted permission to enter or stay in the UK immediately afterwards
- periods of exemption from immigration control, if you were granted permission to enter or stay in the UK immediately afterwards
- time when your permission to stay was extended automatically under section 3C of the Immigration Act 1971
Time spent in the UK when you had a right of residence as an EEA national or their family member is not “lawful residence” under UK immigration law, but caseworkers are instructed in the Home Office guidance that they must apply discretion to count these periods as well.
Overstaying would normally break your lawful residence. However, the Home Office provides guidance to caseworkers about how to use discretion to allow some short period of overstaying, in circumstances where this is allowed by the Immigration Rules. For example, making a fresh application within 14 days of the expiry of your old permission might be permitted under paragraph 39E of the Immigration Rules, but you will be an overstayer while the new application is being considered.
“Continuous residence” might be broken if you leave the UK for more than 18 months in total during your 10-year period, or for more than 6 months at any one time. It might also be broken if your permission expired while you were outside the UK, but did not apply for a new visa in good time.
The Home Office guidance explains that excess absences can sometimes be permitted in “compelling or compassionate circumstances”. This could include things like being in hospital overseas, or having a return visa refused for reasons that were overturned on appeal.
Extensions
Under paragraph 276A1 of the Immigration Rules, you can still qualify for permission to stay in the UK, if you have completed 10 years of continuous lawful residence, but you don’t meet some of the other requirements for settled status.
This might be relevant if you have not yet passed the Life in The UK test, or if you have a recent conviction that prevents you from meeting the suitability requirements.
Qualifying under the long residence rules in this way can be extremely useful if you have a long-running application or appeal. For example, you might qualify for permission to stay in the UK through a combination of temporary admission, discretionary leave, and section 3C leave. If you qualify during the course of a Tribunal appeal, your appeal may be allowed on human rights grounds, on the basis that it would be disproportionate to remove a person who meets the requirements of the Immigration Rules (TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109).
Once you have completed a 10-year period of continuous lawful residence, you can rely on it in future, provided that you are in the UK with permission to enter or stay at the date you apply. For example, you could return as a visitor, and make your application based on an earlier 10-year period.
Please contact me if you would like advice on how the long residence category could help you to settle in the UK.
Kitty Falls
15 February 2021