Generally under UK Immigration rules, if you have been living in the UK for 10 years continuously and lawfully, youcan apply for Indefinite Leave to Remain on the basis of your private life andlong residence in the UK.
As a UK immigration lawyer, I wish to highlight several key points that someone making an application for this visa should note; including that the
- So what does the continuous residence mean?
Continuous residence means that you have been living in the UK and have not left the UK for a period exceeding six months at any one time. Moreover, if you have left the UK, it must be clear that you have the intention of coming back and you must have a reasonable expectation at the time of leaving that you would lawfully be able to return.
Example: a person here with an Australian youth mobility (working Holiday visa) has found a Tier 2 Sponsor, and thus leaves the country toward the end of his visa to apply for a Tier 2 visa in his home country (since he cannot switch from his current visa in the UK). The visa is granted and he is back within two weeks. In this case the period he has been outside would not break the continuity of lawful residence.
It is also worth mentioning that time in prison cannot count towards continuous residence and therefore it would be broken in those circumstances, which means the 10-year clock needs to restart.
- What does the term lawfully mean?
The term lawfully generally refers to your visa, so you must always act pursuant to your existing leave to enter or remain. Therefore, if you overstay, even for a short period or even accidentally, it is likely to break your lawful residence. There is a policy that may assist in some cases and that allows limited exceptions to be made, so it is worth checking with your UK Immigration solicitor whether your case could fall under the exceptions.
Any other requirements to be met to settle under 10-year route?
One of the most important rules in making an application for a visa is that you have not fallen under the general grounds of refusal e.g. one must not have been in breach of the Immigration rules during this period.
Example: An applicant who the Home Office know has previously worked beyond the allowed 20 hours may have a visa application for ILR under long residence refused, under the general grounds of refusal.
Also, in making this particular application, you must sit for the English exam level B1 and successfully pass the Life in the UK
Breaks in lawful continuous residence
While
First of all, your UK immigration solicitor will need to establish when such breaks took place, as there are essentially two laws that apply, depending on the date of the gap(s).
- Pre – November 2016
If you have overstayed your visa for no more than 28 calendar days before the 24th of November 2016, you can still qualify!
- Post – November 2016
On the other hand, if you have any gaps in your continuous and lawful residence from the 24th of November 2016, it won’t be that easy.
First of all, you must have made your application within 14 days of your leave expiring and additionally you must prove that there was a good reason beyond your or your representative’s control. So, at the moment the law is definitely more restrictive.
- What can count as a good reason beyond the applicant’s control?
As a good reason beyond control, the Home Office can acknowledge:
- serious illness – this must be supported by appropriate medical documentation
- travel or postal delays
- inability to
provide necessary documents – this would only apply in exceptional or
unavoidable circumstances beyond your control, for example if:
- it is the fault of the Home Office because it lost or delayed returning travel documents
- there is a delay because you cannot replace documents quickly as a result of theft, fire or flood – you must send evidence of the date of loss and the date replacement documents were sought.
The above-mentioned situations for sure do not happen every day, and if it happens to you it is your responsibility to prove that. Thus, forgetting to submit an application on time, or your UK immigration lawyer failing to submit an application on time, does not count as a good reason:
Example: Martina’s leave expired on the 1st of January 2017. She was admitted to the hospital on the 25th of December 2016 following an emergency and was only released on the 4th of January 2017. She applied for Leave to Remain on the 5th January of 2017 and, although she applied after the expiry of her leave, the Home Office concluded that there was a good reason beyond her control, in accordance with paragraph 39E, and she was granted leave.
20 Years (Unlawful or Mixed lawful & Unlawful residence)
So, what if I haven’t been in the UK for 10 years lawfully? Well the short answer is that you would not qualify for long residence ILR under the long residence policy. However, the rule does recognise that you still have established significant private life in the UK and thus it may be unlawful to require you to leave to go to a country in which you would effectively be a stranger.
Therefore, if you haven’t been in the UK for 10 years lawfully, the 20 years’ rule may be suitable for you.
The 20 years’ rule requires for you to be in the UK continuously (as explained above), but not necessary lawfully, so if you didn’t have valid leave at any point of your stay in the UK, or even if you never had valid leave, you may still qualify to settle in the UK.
Example: Olamide first came to the UK in June 1998 on a visitor visa. Her leave expired in December 1998, and she had remained in the UK ever since. She had been living in the UK without valid leave for over twenty years and during this time she had established a significant private life here and there would be significant obstacles to her integrating into her country of origin. Miss Olamide could apply for a visa under these rules and would if successful be granted a two and half year visa under the 10-year private life route, renewable every 2.5 years until she finishes the period of 10 years (120 months) lawful residence in the UK, when she will be eligible to apply for ILR.
Less Requirements:
- Prison time: It’s also good to know that the 20-year rule is less restrictive than the 10-year rule when it comes to imprisonment. Under this rule, the time spent in prison will not restart your clock, but simply this time will not count towards continuous residence in the UK.
- No English or Life in the UK tests: since this is not an ILR application there is no English or Life in the UK requirement
Conditions for 20 year residence– Leaver to remain not ILR
It is also very important that you bear in mind that you cannot simply settle here after 20 years of continuous living in the UK! Under this rule, at first, you will be granted limited leave to remain for a period of 30 months. After that, you will be eligible to apply for indefinite leave to remain once you have accumulated a period of 10 years (120 months) lawful residence in the UK. So, under these rules, you as a migrant will effectively be required to have lived in the UK for 30 years before you will be
Moreover, you still must meet the suitability requirements, which are set in Appendix FM,
Example: Ono was convicted of drug dealing and has spent two years in prison. Later on, he applied for Further Leave to Remain, but his application was unsuccessful due to the public good.
Accordingly, it may be important to check with your solicitor if you have any doubts, before making an application.
Pre 9th July 2012 law
Anyone who has experience with UK immigration law will tell you that a lot has changed since July 2012, and that one of the most significant changes relate to this visa. Before the 9th of July 2012, it was possible to settle (i.e. get ILR) after 14 years of continuous residence in the UK, irrespective of whether the residence was lawful, unlawful or a mixture of both. Now, this rule has been replaced by the 20 years’ rule explained above, which allows you to only get leave to remain if you have been in UK for 10 years lawfully. The rules effectively abolished any ILR under long residence for anyone who has not been lawfully in the UK for a 10 year period.
Private Life 10 year Route for Less than 20 Years
If you have not lived in the UK lawfully and continuously, you still may qualify if you are:
- under the age of 18 years and have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect you to leave the UK;
(Considering the abovementioned it must be always in the child’s best interests).
- you are aged 18 years or above and under 25 years and have spent at least half of your life living continuously in the UK (discounting any period of imprisonment);
- you are aged 18 years or above, have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to your integration into the country to which you would have to go if you were required to leave the UK.”
As the first two examples seem to be very simple, the third example is quite tricky, as a very significant obstacle is difficult to define. Considering a very significant obstacle, we must consider whether the applicant will be able to integrate into their country of proposed return.
It’s important to remember that the burden of proof is on the applicant to show that he is not able to integrate to the country of proposed return, not on the Secretary of State to show the opposite.
Example: A migrant from Saint Lucia comes to the UK at the age of 11 with all her family members. She attends school in the
UK, but unfortunately doesn’t regularised her stay in the UK until the age of 27. She has not been back to her home country since coming to the UK and her family – siblings and mother – have since regularised their stay in the UK at the different categories. Such a person can argue that she has no ties in her home country and that she would face significant obstacles to relocate and integrate to the country of proposed return.
However, please note that there are no straightforward cases and all are highly dependant on personal circumstances, as the Home Office will still argue that a very significant obstacle does not mean the inability of forming a life to the UK’s standard.
Moreover, we have to bear in mind that, even if the applicant is expected to return to a country where there are no family, friends or social networks, that is not in itself considered to be a very significant obstacle to integration. Additionally, where an applicant cannot speak any language which is spoken in the country of return, this will not in itself also be a very significant obstacle to integration, unless they can show that they would be unable to learn the language of that country, for
The courts have grappled with the issue of significant obstacles; the Court of Appeal, in the dicta of Sales LJ in the case of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, Paragraph 14 notes that :
“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.
Bottom line: there are various ways of regularising oneself, but ultimately if someone is to qualify on the basis of length of time they have lived in the UK, they would only qualify for Indefinite Leave to Remain after a lawful residence of 10 years. The law in this area is always changing, with the government tightening the rules in accordance with public pressure.
It goes to prove that the law is a dynamic subject and the immigration rules seem to be more and more restrictive every year. It is thus important to migrants in the UK, lawful or unlawful, to keep a close eye on the ever-changing rules, and to make sure they apply for any visa they may be eligible for at the earliest opportunity, rather than wait and miss out due to changes.
IF YOU HAVE BEEN AFFECTED BY ANY UK IMMIGRATION MATTER, PLEASE CONTACT SOLICITOR TITO, A UK IMMIGRATION AND HUMAN RIGHTS SOLICITOR, FOR A FREE INITIAL CONSULTATION ABOUT YOUR LEGAL OPTIONS. IT IS VERY IMPORTANT TO MAKE SURE THAT EVERYTHING IS DONE CORRECTLY THE FIRST TIME, TO AVOID UNNECESSARY COSTS AND STRESS.
PLEASE CALL 07544 669131/01163800744 OR ON SKYPE: TITO.MBARITI.