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Can time spent under EU law count towards a 10 year residence application?
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Someone recently asked me whether time spent under EU law can count towards a 10 year long residence application so I thought I would flag up the answer for others as well. In short, “yes”. I would have thought there would be relatively few people who find themselves in this situation but there will be some.
What is a 10 year long residence application, you ask? It is an application under paragraph 276A of the Immigration Rules which allows a person who has resided in the UK continuously and lawfully for 10 years to apply for settlement (Indefinite Leave to Remain or ILR). There are further qualifying criteria and the word “continuously” is subject to specific legal qualifiers but that is the gist of it.
Most people with residence under EU law as an EEA national or the family member of an EEA national will end up acquiring permanent residence after 5 years anyway, and will not need to apply for ILR, particularly as permanent residence is a stronger status than ILR with better protection against deportation. However, there will be some people who either qualify for ILR before they qualify for permanent residence because they have already been resident in the UK before becoming reliant on EU law or who somehow were reliant on EU law at some point but then reverted to being resident under the UK rules again.
See page 30 of the Long residence guidance:
Time spent in the UK does not count as lawful residence under paragraph 276A of the Immigration Rules for third country nationals who have spent time in the UK as:
- the spouse, civil partner or other family member of an European Union (EU)
- an EEA national exercising their treaty rights to live in the UK but have not qualified for permanent residence
- former family members who have retained a right of residence
However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK.
Sufficient evidence must be provided to demonstrate that the applicant has been exercising treaty rights throughout any period that they are seeking to rely on for the purposes of meeting the long residence rules.
This could provide a route to settlement for those granted only a “derived” right of residence under EU law, as long as they can acquire the full 10 years of lawful residence. The Home Office may well disagree, though.