10 years in the UK...ILR by right or not?
As a direct access immigration barrister practising with over 20 years experience practising in this field it seems only yesterday that everyone was wondering whether in 2000 the world’s computers would stop. They, obviously, did not, and notwithstanding the constant assertions that immigration was a dying field, immigration still remains a relevant and highly politicised area of law.
In this article following on from the “amnesty” that does not appear to exist I thought I would post an article on another issue that frequently comes up and one I am going to do a short video on over the next day or so.
This is the “10 years residence” in the UK.
There seems to be sadly some confusion as to what “10 years” in the UK entitles someone too. If you have continuous lawful residence as per the law and guidance below you ought to qualify for indefinite leave to remain (“ILR”). However, there are a lot of people who have been in the UK for almost 10 year and who fall short by some months and those who have break(s) in their leave in excess of the government guidance.
The relevant law and guidance is set out below.
The Home Office guidance on ILR applications for Long Residence provides:
Requirements for long residence
The applicant must meet the following requirements to be granted indefinite leave:
? the applicant must have at least 10 years continuous lawful residence in the UK
? there must be no reason why granting leave is against the public good
? the applicant must meet the knowledge of language and life requirement
? the applicant must not fall for refusal under the general grounds for refusal
? the applicant must not be in breach of immigration laws, except
o for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016
o where overstaying on or after 24 November 2016, leave was never the less granted in accordance with paragraph 39E of the immigration rules – for more information on overstaying, see applications from overstayers (non family routes).
The relevant part of the Rules provides:
Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) ‘lived continuously’ and ‘living continuously’ mean ‘continuous residence’, except that paragraph 276A(a)(iv) shall not apply.
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.
Indefinite leave to remain on the ground of long residence in the United Kingdom
276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.
The Home Office does provide a short break(s) in lawful leave and provides examples in their guidance as to this.
However, one of the biggest problems that have come to light in respect of the “10 year Rule” is that if there is a break in the leave in excess of the guidance / rules then the leave is effectively broken.
This might sound like common sense, however this has lead to some litigation over the last few years, based upon a reading of paragraph 39E and paragraph 276B of the Immigration Rules and an argument that roughly went along the lines of “if an application is made within 28 days / 14 days of the previous refusal then this has/had the effect of extending leave”.
The reasoning behind this argument probably originates in the Home Office’s allowing of a further “valid” application within 28 / 14 days of a previous application.
Herein lies the crucial distinction, while an application made within say 14 days of a refusal or of an individual becoming appeals rights exhausted is a “valid” application for the purposes of the Immigration Rules it does not have the effect of extending leave.
This point was argued in a couple of cases, which the Secretary of State won.
The first case which confirmed that when leave ended, the making of a “valid” application did not extend leave is to be found in the case of R (on the application of Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC), where the Upper Tribunal held that:
“If there is no ten years continuous, lawful residence for the purposes of para 276B(i)(a) of the Immigration Rules, an applicant cannot rely on para 276B(v) to argue that any period of overstaying (for the purposes of 276B(i)(a)) should be disregarded. Para 276B(v) involves a freestanding and additional requirement over and above 276B(i)(a).”
At paragraph 75 of the decision the Upper Tribunal set out fuller reasons for this conclusion:
75. The parties are rightly agreed that paragraph 276B of the Immigration Rules sets out five separate requirements. For the reasons advanced by Mr Malik (summarised above) I conclude that:
(1) Given the definition of “ lawful residence ” in paragraph 276A(b), it is hopeless to argue that the Applicant could meet the first requirement under paragraph 276B(i)(a).
(2) It is obvious from the structure of paragraph 276B, read in conjunction with Paragraph 276D, that paragraph 276B(v) is a freestanding requirement additional to sub-paragraph (1)(a) and consistent with the general amendment of the Immigration Rules to the effect that applications for leave to remain by persons who have overstayed for more than 28 days will be refused on that Ground.
(3) There is no arguable merit in Mr Biggs’ contention that the Applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus to be in “ lawful residence ”; nor in the contention that the Respondent’s construction would lead to starkly unfair results to applicants. Rather, it is readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.
If there was any room for doubt in respect of this, it was, arguably at the very least put to sleep by the Court of Appeal’s decision of R on the application of Ahmed v Secretary of State for the Home Department [2019] EWCA 1070 in the refusal to grant permission to appeal, the Court of Appeal endorsed the Upper Tribunal case of Juned Ahmed and concluded at paragraphs 15 - 16:
“15. In our view, the wording of paragraph 276B is clear:
(1) First, the provisions of paragraph 276B(i)-(v) are separate, freestanding provisions each of which has to be met in order to for an applicant to be entitled claim "10 years continuous lawful residence" under paragraph 276B (see paragraph 276C).
(2) Second, sub-paragraph (v) is not drafted as an exception to sub-paragraph (i)(a) and makes no reference to it. There are no words which cross-refer or link sub-paragraph (v) to sub-paragraph (i)(a), or vice-versa, whether expressly or inferentially.
(3) Third, there is no difficulty in giving sub-paragraph (v) a self-contained meaning. It makes use of the provisions of paragraph 39E of the Rules. Paragraph 39E is the 'exceptions for overstayers provision' which, in effect, grants a 14-day period of 'grace' in respect of the lodging of LTR applications in certain circumstances. Under sub-paragraph (v), where paragraph 39E applies, any current period of overstaying as well as any previous period of overstaying after the advent of the amendment to the rules on 24th November 2016 will be "disregarded". In addition, periods of overstaying of less than 28 days before that date are also disregarded. The reference to previous periods means that, in requiring that the applicant should not "be in the United Kingdom in breach of immigration laws", the sub-paragraph is not looking simply at the applicant's status at the date of the application, but also looks back in time to his previous immigration status. Mr Sarker confirmed that the sub-paragraph referred to all previous periods of overstaying. This is, of course, subject to the SSHD's residual discretion.
(4) The critical point is that the disregarding of current or previous short periods of overstaying for the purposes of sub-paragraph (v) does not convert such periods into periods of lawful LTR; still less are such periods to be "disregarded" when it comes to considering whether an applicant has fulfilled the separate requirement of establishing "10 years continuous lawful residence" under sub-paragraph (i)(a).
(5) Fourth, there is a marked contrast in the drafting of the definitions of "continuous residence" and "lawful residence" in paragraph 276A sub-paragraphs (a) and (b) respectively. In respect of continuous residence, in addition to defining it as an unbroken period, the sub-paragraph goes on to deem that it "shall not be considered to be broken" by certain periods of absence from the UK. Lawful residence, on the other hand, is simply required to be continuous residence (i.e. unbroken) pursuant to certain types of leave, temporary admission, immigration bail or exemption from immigration control. Unlike sub-paragraph (a), in sub-paragraph (b) there is no corresponding provision which allows residence which is not continuously lawful to be deemed unbroken. It is here that one would expect to find the saving which the Applicant incorrectly contends is created by paragraph 276B(v), and one does not. We consider that to be a clear indication that the lawfulness of continuous residence must be unbroken.
(6) Fifth, by contrast, there are examples elsewhere in the Rules expressly providing that "continuous periods" of lawful residence in the UK shall be considered "unbroken", notwithstanding periods of overstaying, where paragraph 39E applies. There are to be found in specific areas where such an exception was clearly intended, e.g. Appendix ECAA relating to ECAA Nationals and settlement and e.g. Part 6A of the Rules in relation to the Points Based System. Part 6A provides as follows (emphasis added):
"Part 6A
Points-based system
245AAA. General requirements for indefinite leave to remain
The following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:
(a) References to a "continuous period" "lawfully in the UK" means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
…
(iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied. …" (emphasis added)
(7) Sixth, applying ordinary rules of statutory construction and the presumption of ideal, rational legislation, these differences in drafting should not be read as accidental or unintended (c.f. Bennion on Statutory Construction, section 9.3).
(8) If and insofar as reliance is placed on the SSHD's "Long Residence" Guidance (Version 15.0) published on 3rd April 2017, this does not avail the Appellant. We note that "Example 1" and "Example 2" on page 16 of the Guidance say that "gaps in lawful residence" can be disregarded because "the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016". This does not accord with the true construction of paragraph 276B as set out above, although it may reflect a policy adopted by the SSHD. However, it is axiomatic that the intention of the Rules is to be discerned "objectively from the language used" not from e.g. guidance documents (per Lord Brown in Mahad (Ethiopia) v. Entry Clearance Officer [2010] 1 WLR 48 (2009) at paragraph 10). The SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy.
16. It will be apparent, therefore, that we agree with the decision and reasoning of Sweeney J in Juned Ahmed (supra). As Sweeney J correctly held, paragraph 276B(v) involves a freestanding and additional requirement over and above the requirements of paragraph 276B(i)(a).”
Both these cases are now fairly settled law, though I have heard, but cannot vouch for this to any certainty that this matter is going to be considered by a “full” Court of Appeal. I say this meaning no disrespect to the Court of Appeal in Ahmed but this was a “permission” application and not a “full” hearing in the sense of a full Court, which is usually made up of three Court of Appeal Judges.
So, while Juned Ahmed and Ahmed may seem to be the final word, however, there seems to be a fairly widespread conviction that when an individual gets to 10 years residence that they are entitled to ILR even if there are gaps in their leave because they have made further applications within the 14 day “grace period” provided by the Home Office.
I am writing this as I have had a few people approach me apparently on the basis that their previous representatives have said that they should keep making applications or varying applications in order to get to 10 years, even if there are plain breaks in their leave.
I have had some sad cases where the individual has been refused, without a right of appeal, made a new “valid” application within 14 days, had this refused and then within 14 days made a further application in the belief that their leave continued.
A further example of this was a case where the individual’s appeal rights ran out in January and they were 8 months short of 10 years lawful residence. The previous representatives made an application for FLR (FP) which was refused in fairly short order and certified as clearly unfounded and no challenge was made to the certification, yet within 28 days before the client had obtained 10 years residence made an application for the client to have ILR.
What made this worse was that the application for ILR was made in the latter part of 2019, this is well over a year after the case of Juned Ahmed. It would or ought to have been clear to the representatives that the individual could not possibly succeed. What troubled me most about this case was that the Applicant had made several applications and notwithstanding the lawyers’ fees had spent a small fortune on the Home Office fees.
In short drawing both the amnesty “scam” or “false news” and the mistaken belief as to what qualifies as lawful continuous residence together is that there is nothing magical in 10 years residence in the United Kingdom, unless you can meet the requirements of paragraph 276B of the Immigration Rules and the relevant Home Office guidance.
It is tragic to have to inform clients that they really do not have a case in these circumstances when they have a) paid a lot of money, b) spent a large portion of their life in the United Kingdom and c) have invested a huge amount of emotional energy in the belief that “ILR” or settlement is “just round” the corner.
What I would suggest that if someone is in the position of having fallen just short of the 10 years continuous residence or that there are gaps in their leave there maybe examples or exceptions that allow an individual the right to remain, for example if the break in the leave was due to say the fault of the Home Office. An example might be where the HO allege that an application was refused but the refusal was never communicated or where there are particularly compelling family circumstances or indeed a change in circumstances.
TOEIC and the ETS “shambles” provides a clear example where an individual whose leave was curtailed in 2014 without an in country right of appeal obtains a right of appeal in, say 2019 or now 2020, perhaps following a Consent Order, establishes that they did not cheat. In those circumstances, while they have not had leave since, say 2014, the effect of winning the appeal is to so fatally undermine the earlier decision, with the consequence that the individual should be put back into the position where they were prior to the 2014 refusal with the consequence that they should or are deemed to have had “continuous” lawful residence. I have won a number of appeals on this basis. I have also seen numerous consent orders where the Secretary of State has, in the recital, accepted this position with the consequence that a successful appeal has lead to a, much belated, grant of ILR.
So while the Home Office is not overly sympathetic towards to migrants generally, see various articles and news on the so called “hostile environment” exceptions do exist and I would advise anyone in such a position to seek proper help from reputable lawyers to see what, if anything can be done.
It may well be that the government does introduce a scheme for the regularisation of individuals who have remained in the United Kingdom at some point, those who have practised immigration for a while will remember the “Legacy Scheme” which was designed to clear the backlog of failed asylum seekers and which lead to large numbers of people being given ILR, then 3 years and then 30 months (depending on when the decision was made) and I have covered this in my previous article.
Should you or a family member have an immigration problem, related to the above, or in general, please do not hesitate to contact me on 020 7 242 3488 or at [email protected] or www.theimmigrationbarrister.co.uk.
Paul Turner is a highly regarded direct access immigration barrister with over 20 years experience working in this field and is the founder and head of Imperium Chambers. He is licensed to provide direct access immigration services to the public by the BSB and also holds a litigation certificate and is able to help at all stages of your case.