All those people who come to this country on a visa which does not lead to a Settlement (ILR) e.g.
Work permit, Marriage and Innovator or Investment visas and they don’t leave the country. They are the people who are going through the roughest and toughest times in this country.
Particularly, Students with children and families, who for various reasons decided or were unable to return to their country after their studies.
In a way, all their suffering is because the government want to punish them for coming to this country on a Temporary Visa but they don’t leave the country after the expiry of their visa.
More than one million people including families and children are trapped in this situation. The present government has failed or is unable to Remove them from the country but is not willing to provide them any relief as well. Therefore, most of these people are relying on the following two categories to settle in the UK or live legally.
- (The 7 Years Children Rules and Policy is not a Right under immigration law to live in this country. To qualify under this category one has to prove, ‘What is in the best interest of the child?)
The current Immigration Law of the UK allows people to apply to remain in the country based on long residence.
There are two categories of long residence.
(a) 10 Years ‘Lawful’ and ‘Continuous’ Residence. In this category, ILR is granted, provided they meet all the other requirements of eligibility and suitability.
(b) Overstayers and illegal individuals can apply for leave to remain after 20 Years ‘Continuous’ residence in the UK.
The above two categories appear to be simple and straightforward but they become very complex and complicated in the majority of the applications.
They are not point-based applications therefore it is not possible to assess the success of the application before submitting it.
The legal definition and interpretation of ‘Lawful’ and ‘Continuous’ are not easy to navigate when people applying for under these categories.
1. Ten years residence: Lawful and continuous.
The definition of lawful residence is valid to Leave to Remain in the UK. This lawful residence includes various categories of lawful residence of any status.
However, recently the period spent on a Visitor visa or Immigration bail was declared ineligible from counting towards 10-year period. Short-time studies and Seasonal Workers are also excluded.
Any period spent as an exemption from Immigration control e.g., Diplomats will be counted only if subsequent leave is granted under the immigration rules after that status.
Any period of overstay whether short, long or accidental will be counted as unlawful.
It is possible to qualify under the 10-year rule even if there are gaps in lawful residence.
In this connection,
‘The Long Residence’ guidance of the Home Office and Court of Appeal case,
Hoque [2020] is quite helpful for the list of ‘Exceptional Circumstances ‘and other reasons for the gap in lawful residence.
The Threshold of ‘Exceptional Circumstances’ is quite high. Therefore, proper legal advice is desirable because the statement and facts submitted to the Home Office cannot be retracted or contradicted later on.
Broadly the absence from the UK is allowed under the following conditions.
- (a)The person has permission to be in the UK when he or she leaves the UK.
- (b) The person has not remained outside the UK for more than six months at one time or more than 18 months during the 10 years being relied on.
- (c) The person has permission and leave to remain when returning to the UK.
- There is an exception for persons who departed the UK before 24 November 2016 and applied for fresh entry within 28 days of the expiry of leave and returned to the UK within 6 months.
Apart from the ‘Lawful’ and ‘Continuous’ residence, the applicants will have to meet all other requirements of ILR.
It comprises the life in the UK Test and the English language Test at level B1.
Further, similar to the ‘Character Test’ for the Nationality application a ‘Suitability Test’ has been introduced for the grant of ILR.
In this test, Personal History, Character, Conduct and Employment Records are included. This application can be submitted within 28 Days before the qualifying period of 10 Years. In certain cases, it can be applied before 28 days but it should be avoided.
2. 20 Years Long Residence: Before 2012 the ILR was granted after continuous residence of 14 years.
Now, the grant of this leave is based on the continuous residence of 20 Years and leave of 30 months is granted if the application is successful.
Under this rule, a person does not have to have lived in the UK legally but simply ‘Continuously’.
The definition of ‘Continuous’ is the same as for 10 years
‘Lawful’ residence.
In this category, the time spent in prison will not break the period of residence but it will be not counted towards the period of residence.
The time before and after imprisonment can be aggregated to make up the full amount of time.
The time allowed for the outside UK is 550 days instead of 548 days like in other categories.
Nowadays, the Home Office is quite strict about the proof and evidence of living in the UK for 20 years.
It’s not easy to provide all the evidence of living in the country when someone is not living legally. Therefore, long and unexplained gaps in evidence for the years lived in the country should be filled with personal references of people with substance and recognition in the society.
The proportion of legal and illegal stay in the country can be a point of consideration in certain cases.
Written by Dost Malik, this article delves into the intricacies of UK visa regulations and the pathway to settlement.