The immigration rules provide for an option of applying for indefinite leave to remain after completing 10 years of continuous lawful residence. At present, any type of permission to stay counts as lawful residence, whether or not the permission is in a temporary category or in a long-term immigration route leading to settlement.
On 12 April 2023 this rule will change to exclude from the definition of lawful residence temporary immigration categories, such as visitor visa, short term student visa and temporary admission granted while an application for asylum or humanitarian protection is under consideration.
The amendment will come into force with a retrospective effect – in other words, applications made before 13 April will be decided under the current rules and applications made after 12 of April will be decided under the new rules even if the periods of residence under consideration were before 12 April 2023.
This change will be particularly important for those who had lived in the UK for 10 years in the past but have not made the application for indefinite leave to remain. The rule does not require the 10 years to be continuous up to the time of the application. A child who lived in the UK for ten years and was taken back home after, has the right to apply for indefinite leave to remain as an adult relying on the time spent in the UK in the past. What will change after 12 April, will be what periods of stay during this past 10-year period will count as a qualifying period.
It is important that immigration lawyers should check if their clients may lose their existing entitlement after April. And those who believe they may qualify for indefinite leave to remain under the long residence rule should urgently seek legal advice to check if they are not going to lose their entitlement after the change in the rules.
Although visitors are extremely unlikely to clock up ten years of lawful residence in the UK by frequent visits –they are not expected to be in the UK for more than 180 days in any single year and the border agency would pick up on it quite quickly – in the context of continuous residence visits can bridge the gap between two long term visas. While an absence from the UK for a six-month period breaks the continuity of residence, a visit to the UK during this period can under the current rules help preserve continuity of residence.
A couple of scenarios to illustrate the significance of this change:
A number of our clients have been waiting for a decision on their asylum/humanitarian protection applications. It is not unusual that the waiting time lasts for several years. It is virtually impossible to expedite the decision. All these clients have temporary leave which under the current rules counts towards their eligibility for indefinite leave to remain subject to approval of their application. So up until now the delay was not a huge issue, at least from the time point of view – time started to run from the date the client lawfully entered the UK as a visitor or from the date they were granted temporary admission. After 12 April, these years of waiting will not count towards anything and the time will start to run only from the date leave to remain is granted, which may take another few years.
One of our clients had been in the UK as a short-term student studying English. He left in time, before the expiry date of his visa and a few months later returned as a visitor to spend time with his family. After that there was a serious change in his country of origin, and he was unable to return. Under the current rules, the short-term student visa, subsequent time as a visitor, and the time the client has been waiting for a decision on his humanitarian protection claim would have counted toward continuous lawful residence. After 12 April, it will not count and there is no way to reverse this.
This change is particularly frustrating because its only purpose seems to be to make the delays in the decision-making processes even harsher on the applicant. There is no way of making the Home Office to comply with any timeframe. The duty to make a decision within reasonable time is always considered in its own context and ironically the longer and the more common the delays are, the more elusive becomes the concept of reasonable time.