Briefing: how does the 10 year route in Appendix Long Residence work?

Appendix Long Residence of the immigration rules enables a person with 10 continuous and lawful years of residence in the UK to apply for indefinite leave to remain. It is also possible to apply for limited leave to remain in this route. But there are complications and qualifications.

What kind of leave counts towards the 10 years?

LR 11.1 specifies that the 10 years must have been made up continuously of periods in which:

(a) the applicant had permission, except permission as a Visitor, Short-term Student (English language) or Seasonal Worker (or under any of their predecessor routes); or
(b) the applicant was exempt from immigration control; or
(c) the applicant was in the UK as an EEA national, or the family member of an EEA national, exercising a right to reside under the Immigration (European Economic Area) Regulations 2016 prior to 11pm on 31 December 2020 (and until 30 June 2021 or the final determination of an application under Appendix EU made by them by that date).

Example

Nora is a refugee. When she claimed asylum, she was lawfully in the UK as a student and her application for asylum thus extended her leave by virtue of section 3C of the 1971 Act. Because her case was complex, no decision was made on her case for four years. This is unusual but does sometimes occur. When a decision was finally reached she was refused asylum. She appealed in time. All the way through the application and appeal process her section 3C leave continued.

Nora’s appeal was eventually allowed after two years and she was recognised as a refugee. She was granted five years of leave. Before the expiry of that five year period, Nora will be eligible to apply for indefinite leave to remain under the 10-year rule because she had accrued 10 years of eligible leave, first as a student, which was extension by section 3C, and then as a refugee.

Further, LR 11.2 explicitly excludes the following:

(a) time spent on immigration bail, temporary admission or temporary release; and
(b) any period of overstaying between periods of permission before 24 November 2016 even if a further application was made within 28 days of the expiry of the previous permission; and
(c) any period of overstaying between periods of permission on or after 24 November 2016 even if paragraph 39E applies to that period of overstaying; and
(d) any current period of overstaying where paragraph 39E applies.

However, just because (b) and (c) are excluded from counting towards the 10 years, does not mean that they break continuity of leave.

Where a person overstays, even for a short period or even accidentally, this will be unlawful residence. On the face of it, any period of overstaying at all will break a period of continuous lawful residence. However, there is a policy which may assist in some cases and which allows limited exceptions to be made.

Is it possible to qualify under the 10 year rule even if there are gaps in lawful residence?

The ‘Long Residence’ guidance, and the Court of Appeal in Hoque [2020] EWCA Civ 1357, confirm that an application may be granted even when there are periods of overstay, provided the applicant:

• has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence

This is reproduced in Appendix Continuous Residence, which now applies to this route, and sets out at CR 4.1 that continuous residence will be broken in a number of situations, including where a person is sentenced to imprisonment, was deported, or was absent longer than permitted. Many of the situations are subject to exceptions and so these rules need to be read carefully.

Paragraph 39E, in turn, provides for a number of exceptions for overstayers, including where an application for further leave was made within 14 days of the person’s leave expiring and there was a good reason the application was not made in time, or within 14 days of a previous application’s refusal, or where the period of overstaying was covered by the exceptional assurance put in place during the pandemic.

In the more recent case of R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909, the Court of Appeal clarified that periods of overstaying may be disregarded in the circumstances above to the extent that they will not break the continuity of residence (so the clock on the 10 year period doesn’t restart from the beginning). However, they will also not be counted towards the qualifying period.

Example

Ono is a student from Nigeria. He has been living and studying in the UK since 3 August 2013 and he wants to make an application for indefinite leave to remain under the 10 year rule.

It turns out that on two occasions, Ono has unwittingly overstayed.

The first time was in 2020. He applied for leave to remain as a spouse on 1 March 2020, although his student leave expired on 25 February 2020. He could not apply before because he was admitted in hospital following an emergency and was only released on 28 February.

Although he applied after the expiry of his leave, the Home Office granted his application in accordance with paragraph 39E because it was submitted within 14 days of the expiry of his leave and the Home Office considered there was a good reason for the delay in his application. His application was granted on 6 April 2020.

When Ono applied to extend his spouse leave in 2022, he failed to provide the required financial evidence and his application was refused on 6 December 2022, with a right of appeal. Instead of appealing, Ono waited until the two week appeal deadline had passed, and he became an overstayer, and lodged a fresh application on 23 December 2022, which was then granted on 31 January 2023.

Provided he meets all the other requirements for indefinite leave on the basis of long residence, Ono’s application should succeed once he has accumulated 10 years of lawful residence, discounting the two periods of overstaying.

The first period of overstay should be disregarded because Ono was granted leave in accordance with paragraph 39E. However, there was still a 41 day period of overstay, between the expiry of his leave on 25 February 2020 and the grant of his next leave on 6 April 2020. That period also does not count towards the 10 years. 

The second period of overstaying should be disregarded, also under paragraph 39E, because Ono lodged the fresh application within 14 days of his section 3C leave expiring. He was an overstayer from when his leave expired on 20 December 2022 until he was granted leave on 31 January 2023, a period of 42 days, which also cannot count towards the 10 years.

Ono should therefore be eligible for indefinite leave to remain 10 years and 83 days (41 + 42) after his arrival to the UK on 3 August 2013.

Are absences from the UK permitted for long residence applications?

The new rules, found in Appendix Continuous Residence, are much more generous about which absences are permitted before continuity of leave is broken. A break in continuous residence will in effect restart the clock. The basic rule is no more than 180 days’ absences in any rolling 12 month period, unless one of the exemptions set out in CR 2.2., CR 2.2A, CR 3.1. or CR 3.2 applies, subject to CR 2.3.

Days of departure and return do not count towards the total; it is only whole days outside the UK which count.

The Continuous Residence guidance covers some situations which may fall under the “compelling and compassionate personal circumstances” exemption. Examples include but are not limited to where either the applicant or a close family member has a life-threatening illness. The Home Office will expect to see evidence of this, for example medical certificates and a letter explaining the circumstances.

When considering whether other situations fall within this exemption, the Home Office will consider the following:

• whether the reason is credible and evidenced
• whether it was in the applicant’s control
• was the absence planned, for example, not in response to urgent or
• unexpected events
• was the applicant prevented from returning to the UK, or did they experience significant delay outside their control preventing them from returning the UK

Transitional provisions

In keeping with tradition for long residence applications, the transitional provisions in the new rules are needlessly complex. They are now found in Appendix Continuous Residence:

CR 2.2A. Where the application is under Appendix Long Residence, for any qualifying period before 11 April 2024, the applicant must not have been outside the UK for more than 184 days at any one time, and must not have spent a total of more than 548 days outside the UK during that qualifying period, subject to CR 2.3.

The Continuous Residence guidance interprets it like this:

Appendix Continuous Residence (at paragraph CR 2.2A) recognises that its provisions are different from the previous long residence rules at paragraph 276A and makes transitional arrangements specifically for long residence applicants. These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall in an part of their qualifying period before 11 April 2024. This means that:

• any single absences started before 11 April 2024 must be no longer than 184 days
• any part of a 10-year qualifying period before 11 April 2024 must not have total absences of more than 548 days
• from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period

The guidance later repeats:

If the applicant is applying under Appendix Long Residence, any absences from the UK which started before 11 April 2024 will be considered towards a limit of 184 days in any single absence, and not more than 548 days in total for any part of the qualifying period before 11 April 2024.

Where the 10 year period finishes before 11 April 2024, this is simple. The old rules apply to the whole 10 years: no single absence over 184 days and the total sum of absences must be below 548. It is equally simple for anyone whose 10 year period begins after this date: only the new rules (180 days in any given 12 months) apply.

It is a little trickier where part of the 10 years is from before 11 April 2024 and part of it after as the old rules apply to the period of time spent before 11 April 2024, and the new rules apply to the period of time spent after 11 April 2024.

Therefore, for absences that began before 11 April 2024, no single absence should be longer than 184 days and there is a cap of 548 days on total absences before 11 April 2024 that fall within the qualifying period. Interestingly, this is not done on a pro-rata basis, so whether an applicant is relying on two years or nine years before April 2024 as part of the 10 year qualifying period, their absences allowance for that period remains 548 days. Then, for absences beginning from 11 April 2024 onwards the applicant must ensure they have not been outside the UK for more than 180 days in any 12-month period.

Historic periods

Applicants in this route could previously rely on a historic 10 year period instead of one that just ended, provided they were in the UK with leave to remain. This rule is gone. Appendix Continuous Residence provides the formula for how to calculate the 10 year period:

CR 6.1. The continuous residence periods in CR 2.1, CR 2.2. and CR 2.2A. will be calculated by counting back from whichever of the following dates is the most beneficial to the applicant:
(a) the date of application; or
(b) any date up to 28 days after the date of application; or
(c) the date of decision; or
(d) for a person applying for settlement on the UK Ancestry route, the date of their last grant of permission.

The earliest that someone can have an application granted under the 10 year rule is 28 days before completing the qualifying period of 10 years. There will be cases where people need to submit their application earlier than 28 days in advance and as long as the application is being considered 28 days or fewer before the qualifying period is completed, it will be granted.

It can be difficult to have full control over timing once the application is submitted, so wherever possible applicants should apply no earlier than 28 days before 10 years are on the clock. But in cases where it’s necessary to go earlier, the application may still succeed as long as it is not actually reviewed by the Home Office too quickly.

There is one other new rule but I confess that I don’t understand its purpose:

LR 11.3. Subject to LR 11.4, the applicant must have had permission on their current immigration route for at least 12 months on the date of application, or have been exempt from immigration control in the 12 months immediately before the date of application.

LR 11.4. If the applicant’s current permission was granted before 11 April 2024, LR 11.3. does not apply.

I had initially assumed that this was put in place to disqualify applicants who enter the UK as a visitor and then apply for settlement on the basis of a historic 10 year period but given that this is already prohibited by Appendix Continuous Residence, it’s not clear what mischief this was intended to prevent.

Other requirements

In addition to showing 10 years’ continuous lawful residence in the UK, to have a successful application under these rules an applicant must not fall for refusal under the general grounds for refusal, must pass the Life in the UK test, speak English at level B1 and be lawfully resident in the UK at the date of application (unless paragraph 39E applies).

Limited leave to remain

In cases where an applicant has completed a qualifying 10 year period but has not yet passed the Life in the UK test or the English test, it is possible to apply for limited leave instead of settlement in this route.

The requirements are almost exactly the same, including the ones relating to continuity of leave and absences. The only difference is that there will be no requirement to provide evidence of the applicant having passed the Life in the UK or English tests.

However, here is where we find a lacuna in the rules. Previously, someone applying for limited leave could rely on a historic period of residence to obtain an extension. As this is no longer possible under the new rules, and there are no relevant transitional provisions on this point, there will be applicants who are currently in the UK with limited leave on this basis who will no longer be able to extend their leave once it expires if, for example, they haven’t maintained continuity of leave since that 10 year period.

It is not clear whether this was an intentional decision on the part of the Home Office or an oversight.

Conclusion

Some of the changes to this route, including how absences are calculated, are very welcome and will allow a lot more people to settle on this basis. It is unfortunate, however, that the characteristic lack of clarity that has plagued this route for years has bled over into the new route, in particular the uncertainty regarding whether people already in the UK with limited leave on the basis of a historic 10 year period will be permitted to remain if they do not meet the new rules.