Who qualifies for ILR on the basis of long residence
Have you lived lawfully in the UK for a continuous period of 10 years?
The first question to ask is about your absences from the UK. Have you been out of the UK for more than 540 days during this 10 year period? Have you been absent from the UK for six months or more in any one go?
The next question is whether you have always made timely applications to extend your leave to remain. Has the Home Office ever returned your application as invalid? It may have seemed unimportant at the time, but it could have made you an overstayer. And you may not have known about it. Have you ever been an overstayer?
If your immigration history is beyond reproach and absences from the UK do not exceed 540 days in 10 years, you are eligible to apply for indefinite leave to remain.
The application is subject to the following conditions:
- Continuous legal residence: no interruptions in the legality of stay with the exception of any periods of overstaying of up to 28 days before 24 November 2016, or disregarding periods of overstaying after 24 November 2016 if leave was nevertheless granted after this date under paragraph 39E of the Immigration Rules;
- Absences from the UK should not exceed 18 months in total during the 10 year period or six months in any one time; continuous residence is not interrupted if the applicant left the UK while holding a valid leave to remain and returned to the UK within six months with a valid leave to enter; or where applicant left the UK after expiry of the visa but reapplied for entry clearance within 28 days of expiry and before 24 November 2016, and re-entered the UK within six months of leaving the country;
- There are no considerations of public interest that would make grant of indefinite leave undesirable;
- Good character;
- Successful completion of Knowledge of Language and Life in the UK test.
Good character requirements, as per paragraph 322 (1C) of the Immigration Rules, are subject to the following conditions:
1. Good character requirement cannot be met where the person was convicted of a criminal offence and sentenced to imprisonment of four years or longer;
2. Where the applicant had been convicted of a criminal offence and sentenced to imprisonment of 12 months or more but less than 4 years, the conviction is considered spent after 15 years from the end of the sentence;
3. Convictions punished by imprisonment of less than 12 months are considered spent after 7 years since the end of the sentence;
4. Within 24 months from the date on which the application for indefinite leave to remain is decided there should be no convictions or admissions of liability punished by a non-custodial sentence or any out of court disposal which would be recorded in the applicant’s criminal record.
Public interest considerations
In addition to the Good Character requirements, public interest considerations include personal history, character, conduct, associations and employment record. This rule allows the decision-maker a wider use of discretion and may potentially lead to refusal on the grounds not explicitly spelled out in the immigration rules.
Alternative applications for further leave to remain
Where an application for indefinite leave to remain cannot succeed, either due to the Knowledge of Language and Life requirement or due to Good Character requirement, the applicant may consider applying for extension of leave to remain on the basis of continuous lawful residence of 10 years.
When to apply
Applications can be made up to 28 days prior to completion of the qualifying 10-year period. Applications made earlier would normally be refused.
Right of appeal against refusal of applications for indefinite leave to remain on the basis of long residence
Applications for indefinite leave to remain on the basis of long residence engage Human Rights (private life established in the UK), and a refusal of such application normally bears the right of appeal to an immigration tribunal.
Those who qualify for indefinite leave to remain on more than one ground, for example having completed five years in the relevant PBS category and having reached 10 years lawful residence at the same time would benefit from legal advice on subtle advantages and disadvantages of either route. The one that would bear the right of appeal in case of refusal would be less beneficial for dependants and in some circumstances will not be the preferred option.
Dependants of applicants for indefinite leave to remain under the long residence rule
It is important to bear in mind that there are no provisions for dependants to be included in the application for settlement under the long residence rule. We strongly recommend seeking legal advice before applying as there is no general rule covering dependants of the applicants under the long residence rule and each scenario requires individual consideration.