I was recently reviewing the long residence policy for an informal advice and noticed that since I last looked at it (admittedly a little while now) it has been substantially liberalised in respect of those who have gaps in their lawful residence. This might not be news to everyone else, but I thought it was worth sharing just in case. Kitty Falls posted up the link in the forum for another reason, for which I’m grateful – as previously discussed, modernised guidance is huge a pain to find and use.

The policy used to be very strict for 10 year rule applicants who had submitted a historic immigration application out of time by more than 10 days and/or more than once. Basically, discretion would not be exercised. Now, however, that has been lengthened to 28 days. The full passage reads as follows, with some far more liberal examples than I remember previously:

This page tells you about circumstances that break lawful residence for long residence applications and when you can use discretion for short breaks in lawful residence.

Time spent outside the UK

Continuous lawful residence is not broken if the applicant has a gap of leave outside the UK of less than six months or less. For example, applicants who leave the UK before their valid leave expires and obtain fresh entry clearance and re-enter the UK do not break continuous lawful residence, providing the absence from the UK is less than six months. See example 1 below.

Continuous lawful residence is broken if the applicant:

• has a gap of leave of more than six months, or
• departs the UK after their valid leave has expired.

Discretion for breaks in lawful residence

You must always discuss the use of discretion with a senior caseworker. You must be satisfied that the applicant has acted lawfully throughout the whole 10 year period and has made every effort to obey the Immigration Rules. The decision to exercise discretion must not be taken without consent from a senior executive officer (SEO) or equivalent.

Gap(s) in lawful residence

You may grant the application if an applicant:

• has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar das, and
• meets all the other requirements for lawful residence.

You can use your judgement and use discretion in cases where there may be exceptional reasons why a single application was made more than 28 days out of time. For example, exceptional reasons can be used for cases where there is:

• a postal strike
• hospitalisation, or
• an administrative error made by the UK Border Agency.

Examples of gaps in lawful residence

The examples below show some instances when it may or may not be appropriate to grant the application. This is not a complete list and you must judge each application on the information it contains and discuss this with a senior caseworker.

Example 1

An applicant has a single gap in their lawful residence due to submitting an application seven days out of time. All other applications have been submitted in time, throughout the 10 years period.

Question: Would you grant the application in this case?

Answer: Grant the application as the rules allow for a period of overstaying of 28 days or less.

Example 2

An applicant has three gaps in their lawful residence due to submitting three separate applications out of time. These were 9, seventeen and twenty four days out of time.

Question: Would you grant the application in this case?

Answer: Yes. Grant the application as the rules allow for a periods of overstaying of 28 days or less.

Example 3

An applicant has a single gap in their lawful residence due to submitting an application 24 days out of time. The applicant has provided a letter from their consultant stating that they were hospitalised during this period.

Question: Would you be right to use discretion in this case?

Answer: Yes. Even though the application was more than 28 days out of time, the applicant has proved that there were exceptional reasons for the late application and has tried to maintain lawful residence throughout the rest of the 10 year period. You must confirm this with your senior executive office (SEO) senior caseworker.

Nice to see a bit of reasonableness creeping in somewhere for a change.