Immigration – New Guidance on How a Person Can Get Indefinite Leave to Remain

A person may be able to stay in the UK jurisdiction indefinitely if they have:

• complied with UK immigration law
• been legally and permanently residing uninterrupted for a decade and
• passed the respective Life in the UK and English language tests.

What Are The Legal Requirements To Qualify For Legally and Permanent Residence?

Lawyers should be advising their clients to comply with paragraph 276A of the Immigration Rules by having:

• current and valid leave to remain
• immunity from immigration control; and
• short-term entry

and they will meet the definition of ‘lawfully resident in the jurisdiction’ and be classified as residing continuously.

What Happens After A Person Accrues a Decade of Continuous Lawful Residence?

After a person has accrued the required legally and permanent decade of residence the person’s Indefinite Leave to Remain does not terminate.

Can A Person Leaving the Jurisdiction Interrupt The Right to Qualify For Continuous Residence?

Sometimes the fact that a person residing outside the United Kingdom will not break the right to continuous residence. However, lawyers need to be advising their clients to exercise caution because the right to reside in the jurisdiction continuously will be severed if a person has:

• during the decade resided outside the UK for a one-year-and-a-half combined, prior to 24th November 2016 having failed to apply for entry clearance inside the 28-days of the termination of the previous leave expiring and having done so without valid leave to remain

• been deported from the jurisdiction or declined permission to come to or stay in the UK

• there is proof that the person plans not to return

• vacated the jurisdiction where it is assumed that they will not be allowed to legally return and

• been remanded in police custody or imprisoned.

Is The Home Office Obliged To Refuse If A Person Has Been Away From the Jurisdiction for Half-a-Year

The Home Office confirmed that entry will be declined if a person vacates the jurisdiction for over 18 consecutive months. However, the Home Office may consider there to be persuasive evidence that the person will not be able to come back to the United Kingdom. When making such important decisions the Home Office will start by investigating the time when a person has returned to the jurisdiction and assess whether this is sensible. In the previous decade if a person has been outside the UK for a combined 540 days the Home Office will consider the point in time during the previous decade in which the absence occurred. A person may not comply with the criteria if it was a recent absence, and the Home Office are obliged to consider ‘compelling circumstances.’

Lawyers should be advising their clients:

• to submit an indefinite leave to remain application
• that the reasonable time-period for processing the application is 180 days (subject to the person’s choice to pay an additional £800 to use the super priority service)
• to pay the £2,404 price for the application, up to 28 days before accruing the qualifying time-period of continuous legal residence

that the Home Office decision to decline the application of a grant long-residence will be based upon the public interest and considering the person’s:

• age
• any submissions put forward.
• association with the UK,
• character,
• conduct,
• employment record
• home life and submissions, and
• person’s personal history.

If lawyers advise clients to follow the above strategy, it will give better prospects of successfully submitting applications to the Home Office for Indefinite Leave to Remain.

ASSESSING FIRMS

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Immigration Rules – 11 April 2022 - Immigration Rules part 7: other categories - Immigration Rules - Guidance - GOV.UK (www.gov.uk)

[2] Rule 276A Immigration Rules - Immigration Rules part 7: other categories - Immigration Rules - Guidance - GOV.UK (www.gov.uk)

[3] Ee, Annie – Long Residence ILR Application Top Tips – Richmond Chambers - Long Residence ILR Application Top Tips - Richmond Chambers (immigrationbarrister.co.uk)

[4] Richmond Chambers – Long Residence ILR - Long Residence ILR | Richmond Chambers | Immigration Barristers

[5] Richmond Chambers – Spouse Visa - UK Spouse Visa | Richmond Chambers | Immigration Barristers

[6] McCall, Gillian – Making a Spouse Visa Application – 01 May 2021 - Making a UK Spouse Visa Application: 10 FAQs | Immigration Barristers

[7] Richmond Chambers – What is a genuine and subsisting relationship - What is a genuine and subsisting relationship? - Richmond Chambers (immigrationbarrister.co.uk)

[8] Naz (subsisting marriage – standard of proof) [2012] UKUT 40 - Tribunal decisions (tribunalsdecisions.service.gov.uk)00040_ukut_iac_2012_sn_pakistan.pdf (moj-tribunals-documents-prod.s3.amazonaws.com)

[9] Morocco [2005] UKIAT 00038

[10] GA (“Subsisting” marriage) Ghana [2006] UKIAT 00046

[11] Nationality, Immigration and Asylum Act 2002