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Long residence rules

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UPDATE: the seven year children rule has been scrapped. Read more here.

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There are two immigration rules that can be used to acquire settlement (Indefinite Leave to Remain, or ILR) after a long period of residence in the UK. There is also a third option, which I will also mention.

The first is the 10-year rule, which is for those who have been continuously and lawfully resident in the UK for ten years or more. See rule 276B for the criteria and rule 276A for the definitions of ‘lawful’ and ‘continuous’. Often this will have come about by various extensions of visas in different capacities. Typically those eligible might include students on a succession of courses, such as pre-degree, degree and post-degree, or who studied for several years then switched to an employed capacity.

The reason I am writing this post is to say that additional guidance just very quietly emerged from the Home Office for this type of application. It states that short absences abroad of less than six months where continuity of leave to enter/remain was broken will not necessarily count against an applicant. For example, if a person was present in the UK as a student on one course, left the UK, his or her leave subsequently expired but he or she re-applied and re-entered the UK again before six months elapsed from the date of departure from the UK, that person will still be eligible to apply under the 10 year rule.

Photos in Eighties gear can be helpful
Photos in Eighties gear can be helpful

The second long residence rule is the 14-year rule, also covered by rule 276B. The residence in the UK needs to be continuous, but need not be lawful. For example, original illegal entry or overstaying do not count against an applicant. The rule exists to regularise illegal long term residents, basically. Where enforcement action was started against a person within the 14 years, they cannot apply, however. This means that most asylum seekers will never be eligible as enforcement action includes the setting of removal directions and the service of illegal entry papers. The main beneficiaries are likely to be overstayers and others who have never come to the attention of the authorities.

Of course, proving that one has been continuously present in the UK for 14 years when one has not come to the attention of the authorities at any point can be somewhat problematic. Photos of the applicant dressed in eighties gear can be helpful, as are GP or school records and statements from friends or family, or even employers if they are willing.

The last ‘rule’ is actually a concession outside the rules and applies to the families of children who have been resident in the UK for seven years or more. The Home Office take the view that it is disproportionate to remove a child who has settled here for that long, so ILR will be granted to the child and parents. Immigration lawyers differ on how to go about securing status under this concession. An application can be made with the accompanying exhorbitant fee, or a letter can simply be written to the Home Office setting out the facts. Because it is a concession rather than a rule, most lawyers probably agree that an application is not the right way forward in principle, but it can serve to move things along.

Lastly, none of these rules or concessions is absolute: criminal offences or particularly serious evasion of immigration control will render a person ineligible.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.
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Comments

51 responses

  1. Thanks FM for another very good summary.

    The above is effectively the approved amnesty route, while Boris wants a five year rule for irregular migrants in his recent announcement (cf 7, 10 or 14 years). Also the 14 year application doesn’t have a right of appeal.

    I think the 7 years start at the birth of the child, or the child’s arrival in UK. The parents may well have been here in the UK for longer than that.

    The 7 year concession used to be on the UKBA website (www.ukba.homeoffice.gov.uk) but I think it was removed a few years ago (if anyone finds it please give the link). This concession is now only relevant to parent(s) with UK or Non-EU babies.

    “an application is not the right way forward in principle”
    FM – Please could you explain further. Thanks.

  3. Having read the PDF, I am unclear how this was sourced; was this as a result of an FOI application or a leak? What does “very quietly emerged” mean? In any event, it does not seem to change the position re the 10 and 14 year rules.

    As for Asylum Seekers, yes FM is correct, the rules exclude anyone who has been served with a removal notice (but that can’t stop them from having an at least arguable case under private life, after 14 years in the UK).

    There is a public proviso in the rules that excludes those who have committed criminal offences, however overstaying and illegal working (to pay the bills / to eat etc), shouldn’t normally engage the proviso.

    FM’s advise re evidence is good, letters from doctors or other worthy professionals (i.e. those with a reputation at stake) are highly persuasive, bank statements, pay slips, credit card bills, utility bills, and witness statements or letters of support from neighbors or friends are also useful (and at appeal these people should be offered for evidence, as an Adjudicator will attach far more weight to their evidence if they have withstood cross examination).

    On the 7 year concession, as far as I am aware, it is still in force, Mike O’Brien (then Immigration Minister) announced the concession in Parliament in 1999 – that said once this appears on the new Minister’s radar, it would not surprise me if it were withdrawn.

    Further, Mr T is wrong on the appeal point, I can say this from experience of having defended numerous 14 year refusals before the Tribunal. A decision to remove gives rise to an appeal under section 82 of the 2002 act (both on the rules and private life).

    LondonHopo

  5. Freemovement…please tell me you don’t wear that outfit in court.

    lol that might actually be freemovent in the outfit

  7. Gherson summarises better than I can about appeals as follows:

    “The system of appeals in UK immigration law is very complex. Some refusals carry a right of appeal, others do not. A further complication is that even where it is stated in the refusal that there is no right of appeal, this does not mean that there is no right of appeal on the grounds of human rights or race discrimination.”

    Did you notice the distinction between the two types of “Right of Appeal”.
    Whether or not s276B has a “right of appeal” is a matter of law.

    From the above I wish to highlight the common techniques that PO’s use to win arguments at appeal.
    1. XXX is wrong – guilty/lying until proven innocent/truthful.
    2. I can say this from my experience – Maybe, but (a) it could be legally outdated, (b) it could be subjective (c) it cannot easily be cross examined.
    3. A decision to remove gives rise to an appeal – The merging of two distinct opposing legal issues into one issue, in this case the “right of appeal” v “ability to appeal”.
    4. appeal under section 82 of the 2002 act – quoting law to back up what the PO says, even when it actually backs up the opposite view.

    So appealants watch out, and don’t get tricked by the POs.

  8. Mr T,

    Unless Human rights or Asylum arguments have been certified as manifestly unfound there will always be a right of appeal, in country. Certification is further always vulnerable to Judicial Review.

    An Immigration Decision will clearly state whether or not there is an in country right of appeal, if it is incorrect, it has to be withdrawn and re-served using the correct form of words. Even McDonald says that “Appeal rights can not be created by agreement or consent”.

    I don’t agree with you as to your assertion the PO’s accuse people of being “guilty”, that said my view is of course subjective (As is yours), I should note that he who asserts must prove, thus it is for an appellant to prove their case, the evidential burden rests with them.

    I don’t agree with your suggestion that PO’s try to trick people, I dont think that this kind of language is helpful. Further,you have to appreciate that in 14 year rule cases forged or fabricated documents are some times relied on by Appellants in an attempt to win their case.

    Finally, Gherson was a case involving a person who successfully established that they had been in the UK lawfully for ten years, as versus 14 years un-lawfully.

    LondonHopo

  10. Thanks London HOPO for your latest blog.
    I think your paragraph 3 is particularly noteworthy.
    1. I couldn’t have put it better myself,
    2. I wholeheartedly agree,
    3. It reminds me of the perspectives that we start with.

    Here are my Immigration Axioms

    1. Immigration is Amoral (ie neither moral nor immoral)
    Similar to say food, however just like eating too much, one could also say Hilters implementation of immigration law for Jews in 1930s was immoral.
    2. Immigration has no adsolutes.
    Contrast this with say the law against murder, which is based on the opinion that “murder is absolutely wrong”.
    3. Immigration lacks authority outside of law.
    Whereas the law on murder has religious and cultural authority, immigration does not. Whatever your origins position, man did not build and therefore does not own the land. So where does the authority to control mans movements come from? (Retorical Q)

    Note what I consider is an anomoly, breaching immigration law in UK is covered under “criminal law”, whereas “tresspass” (micro-scopic immigration?) is covered by “civil law”.

    In conclusion, with no “Right or Wrong” answers (except on say legal accuracy) everyone’s opinion is indeed respected and valued, partly because it is subjective.

  12. You know FM, you’re going to make a LOT of applicants happy with the document you’ve posted. May I ask where does it originate from exactly?

  13. The source was a HOPO – the document was handed over during an appeal hearing. The courts have repeatedly said that the Home Office is obliged to bring relevant policies to the attention of the courts and this HOPO did so, quite properly.

  15. I’m delighted this has been helpful to you, Chris! Please let us know how the FOI request pans out.

  17. Will a “spent” criminal conviction affect the outcome if somebody is applying under the 14 years long residence criteria?

  18. Dear FM

    RE: http://www.whatdotheyknow.com/request/long_residence_continuity

    I have some answers! So it looks like the document as you stated is 100% genuine.

    My gap was due to my preceding visa running out, and I could not obtain my work contract for my next job in time for an in-time extension. Therefore I left the country prior to expiry, re-entered as a visitor, then obtained extensions successfully using FLR(O).

    I hope that they will now allow my case! (Still awaiting for the 2nd FOIA request)

    Chris

    1. That’s excellent work, and thanks for sharing it. I must admit I was not aware how easy it is to get hold of these things through FOI requests. I must bear that in mind in future…

    2. Dear FM

      Thanks to the document you’ve posted, my new SET(O) application has now been approved. Application 21 January 2009, approval 26 August 2009 — what a farce!

      Thanks for giving the little guys hope!

      Chris

    3. Th’s great news, congratulations! And I’m so glad this site proved useful. I do sometimes wonder why I spend so much time doing this!

    4. Dear FM,
      I know it’s a long shot, but I’m thinking of digging through the available evidence in my case (ILR1 refused, HSMP approved, ILR2 approved); I’m thinking of submitting a claim for the money that I had spent applying for ILR1 and HSMP above; whether I could get it back from the HO.

      Not asking for legal advice per se; however, do you remember how to find the original case that led to the 103/589 and 103/596? I remember it was about a Hong Kong girl that was denied ILR because of a gap (out of country extension) and subsequently won at high court. I’m mainly looking for redress because I feel I paid £1500 more than I should have done.

  19. My case is exactly the same as the one in the casework. I left uk before my student visa expired, went back to my home country, and came back after two weeks with a Working holiday visa. I’m just wondering if this guidance is set in stone yet, becuase the long residence guidance in the Home office website is still showing the old rule.

    Also when they say 10 years legal stay, does it have to be on certain types of visa, i.e. all student visas.
    In my case, I had 3x student visas, 1x training/work experience visa, 1x working holiday visa.

    I’d be really grateful if you can clarify these issues for me, as I’m a bit stress out about it.

  20. Hi, your help is most wanted here. I applied for ILR in 2003 using the 14-year rule. How long does it take to be granted? Any rumours that anything positive is happening? Thank you.

    Gsiband

    1. I’m afraid no-one can predict how long it takes the Home Office to make decisions on complex cases. If you want to press the Home Office for an answer (which may be a good idea), you should seek legal advice.

    2. How does it amount to a “complex case”? The 14 year rule is designed to regularize “over stayers”. All that is required of the HO is to “verify” if the applicant qualifies under that rule. Verification of documents, that’s all. 3-10 years to accomplish this , is absolutely ridiculous. I hate to speculate but it seems this is a deliberate intention by the HO.

  21. I applied for ilr based on long residence (14 years) in 2004. Until now I still don’t have a decision from the Home Office. It’s been four and a half years, coming up five. Surely this is a very long time? I appreciate that cases of this nature are complex but can’t something be done in pursuing the HO to come to a decision already? The wait has been a very frustrating one. My life has been at a hat since then.

    Maybe someone can advice me as to how best to handle thus situation….

    cheers

    1. Your life has been at a hat? I assume that is bad. You (better your lawyer do it if you have one) can chase the Home Office by correspondence and by phoning their general enquiries number. The latter tends to be pretty ineffective but chasing by letter sometimes gets a decision. Once one has been waiting for as long as you have, it is possible to look at judicially reviewing the Home Office for failure to make a decision. Cases like yours should not be part of the ‘Legacy’ and that type of delay is unacceptable.

  22. Hi freemovement

    Not posted before now but would say that your website is a good forum for discussion.

    Got a funny case. Person came to UK 11 yrs ago without visa or passport. Claimed asylum. Got rejected but was given national insurance number and allowed to work. They attended all reporting sessions required. Not served with notice of liability for removal. They have bought houses, run own business and pay tax.

    He needs to regularise his affairs in UK but thinking application must be made outside the immigration rules as case does not fit into para276A-276D ie not 10 yrs continuous lawful residence and not 14 yrs continuous residence.

    I know that prior to long residence concession being codified into rules that 10-14yr applicants would still be considered. Not sure what the position is now tho. Macdonald appears to be silent also. Any tips?

    Or is just a matter of advising the person to return to their home country?

    PA

    1. I can’t give legal advice on this forum for all sorts of reasons. The long residence concession has been scrapped, though. It did overlap with the new rule for quite some time but no longer. Anyone who has been in the UK for 11 years would have some interesting Article 8 private life issues, even if they didn’t have Article 8 family life issues.

  23. Dear sir:

    Will the 10 years rule stay until June 2011? That will be the time for me staying here 10 years. Is it in EU human right law? Can HO change the long residence rule through parliament bills?

    Best regards.

    1. The 10 year rule is in the Immigration Rules, officially called HC395. It can be changed at any time and it doesn’t even need an Act of Parliament. It certainly is not a fixture of UK immigration law. Given some of the recent cases lost by the Home Office on long residence, I wouldn’t be surprised if it was scrapped. It is a UK law, not a European law. However, anyone who has been resident for a long time in the UK may have built up what we call a private and family life here, and may have a case for being allowed to stay. These sorts of cases are very dependent on the individual circumstances of the migrant.

    2. I have recently refused LT due to gaps!I have been here now for more than 11 yrs!Private or family life was dismissed!Discretion was not considered as i had more than 2 gaps!

  24. Hi freemovement,

    I attended an appointment to apply for my 10 year long residency ILR at a PEO on 30 April 2009 as I was going to have been in the country for 10 years on the 12th of May 2009. I entered the country on 12 may 1999 and was on a visitors visa. I changed my visa to a student visa and had been on a student visa until 2007 when I changed to a work permit. I had always applied for my visa’a before they expired. When I attended this appointment I was made aware of a 9 day gap between my visa’s expiring and was told my application was recieved late. Therefore they said my cas was a complicated one and they could not make a desicion on thet day. This gap was in 2003 when I was on a student visa and I believe this when i was with a certain college and the college used to send students passports in batches and believe my passport was caught up in that. Never the less I have sent my passport with a letter explaining how this gap happened and have only sent it a week ago as I had to travel at the end of May and was not sure how long they would take to make a decision. Is there any chance of my ILR being granted? I have also come across a document on the HO website which states that they will use their descretion it the gap is less than 10days or if the applicant hasn’t got regular gaps betweem their Leave to remain.

    1. As stated all over this website, I’m afraid I can’t and don’t give immigration advice here. If you want advice you need to see a lawyer. However, the document you refer to about a relaxed approach to occasional minor breaks in residence sounds interesting and I don’t think I’ve seen it before. Could you post a link to it or describe where to find it?

  25. Hi freemovement,

    Here is a link to the document.

    http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter18/longresidence/Long_Residence_IDI-_final_d1.pdf?view=Binary

    If you cant access it from here go to http://www.ukba.homeoffice.gov.uk, click on their A-Z index on the top right of the page, Click on the letter I and look for Immigration directorate instructions (policy and law)then click on chapter 18-long residence, you’ll find the document there. On the document click on 2.3.3 Breaks in lawful residence and the use of discretion. That will take you to the section at the bottom of the page.

  26. Hi ya, just wondering what will happen to this “long residence” rule once Borders, Citizenship and Immigration Act has been fully implemented? Will the “long residence” rule survive?

    1. No-one really knows. Personally, I suspect that the long residence rules may well be withdrawn at some point in the next months or years, but I have no basis for that other than seeing what happened to DP3/96 and the 7 year child rule. They are very sensible rules to have (although arguably too long) but that won’t necessarily save them!

    2. Thanks for the prompt reply.

      I got another question in relation to this long residence too. We all know that 10 year rule is including “lawful” stay in this country. Can “post-study” work include as qualifying period as well because the home office website said it does not lead to settlement.

      And thinking ahead, I wonder how this whole “post-study” work will work in the 2009 act (in terms of qualifying period).

      Feel free to comment.

  27. iam wondering if the form t application that allows children of migrants to apply to the secretary of state to be considered for british citizens (after 10years now) will not be scraped. wants to know if it is in part of the uk immigrtion law or just like the 7 year residence as well. would very much like to know

    1. That’s very different to the long residence immigration rules. It is a nationality law and is set out in primary legislation. The Home Office has no plans to change it and would have to pass an Act of Parliament to do so, for which there would be considerable warning. There is actually a nationality Bill being considered by Parliament at the moment, but it would not make any change to this part of the law.

  28. re: long residence – 10 year rule
    Hi there,
    thanks very much for offering great advise in the site.
    my question is how the discretion is exersised if one spent 7 years on a student visa and the rest three with a retained right of residence (married to EEA National, then divorced but retained the right of residence under EU regulations). the home office website states that the discretion may be exercised to count those years as if it were continuous and legal residence.
    does this actually mean yes or no and how would this be implied?
    thanks so much for your help!
    George

    1. Sorry George, but there’s not much I can add to what the policy says. It sounds like you need legal advice, which I can’t provide direct to the public. The policy does sound helpful to your situation though. The problem is that there are few, if any, certainties with the Home Office and even good, solid applications sometimes get rejected for daft reasons.

  29. Thanx for such a wonderful information. FM, I’ve been in UK for 10 years coming February 2010. My problem is that I stayed in africa for
    6 months, 2 days due to my mums illness (20th Feb 2000 to 22 August 2000 but the visa was ok). Other than that everything is ok. Just want to find out whether I can apply for the 10 years residency.

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