Navigating the 10-Year Long Residence Route: Understanding Gaps and Lawful Status

10 Year Long Residence ILR

The 10-year Long Residence route to Indefinite Leave to Remain (ILR) is a crucial pathway for many individuals who have built their lives in the UK. However, calculating continuous lawful residence can be incredibly complex, especially when there have been periods of overstaying, temporary admission, or immigration bail. Recent changes to the immigration rules and key legal judgments have further clarified – and in some cases, complicated – how these periods are treated.

At Visa Solutions UK Immigration Lawyers, we frequently encounter scenarios that require a deep dive into an applicant's full immigration history. Understanding how specific gaps and statuses impact the 10-year count is paramount to a successful application. This blog post aims to shed light on common pitfalls and provide clarity for those piecing together their long residence timeline.

What is the 10-Year Long Residence Route?

The 10-Year Long Residence route allows individuals who have lived in the UK continuously and lawfully for a decade to apply for Indefinite Leave to Remain (ILR). This grants them permanent residency in the UK, freeing them from immigration controls. The core requirements revolve around:

1. Continuous Residence: Living in the UK for 10 continuous years.

2. Lawful Residence: This 10-year period must be lawful. This is where the complexities often arise.

The current rules governing this route are primarily found in Appendix Long Residence of the Immigration Rules.

The Critical Distinction: Continuous Residence vs. Lawful Residence

One of the most common misconceptions is that if a period doesn't break continuous residence, it automatically counts towards lawful residence. This is not the case, and this distinction is vital.

• Continuous Residence: Refers to the physical presence in the UK without significant breaks. Short periods outside the UK are permitted, and certain periods of overstaying can be "disregarded" (meaning they don't break continuity).

• Lawful Residence: Refers to periods where you held valid immigration leave (e.g., a visa, granted leave to remain, or protected by Section 3C leave) or were otherwise explicitly considered lawfully present under specific provisions of the Immigration Rules.

Understanding the "Disregard" Rule for Overstaying

Historically, under paragraph 276B(v)(a) of the old rules, a single period of overstaying of up to 28 days could be disregarded for the purpose of assessing continuous lawful residence. This meant the continuity wasn't broken, but importantly, this period still did not count towards the 10 years of lawful residence.

Crucial Update: For applications submitted on or after 24 November 2016, the rules changed. Paragraph 39E now states that a period of overstaying of 14 days or less can be disregarded, provided the applicant had leave on their last day of leave and submitted a further application within 14 days. If the overstaying was between 14 and 28 days, it could also be disregarded if the application was made between 15 and 28 days after the expiry of leave, there was a good reason beyond the applicant’s control for the delay, and the good reason was provided in the application.

Key Point: If your period of overstaying occurred before 24 November 2016, the more generous 28-day disregard rule would apply in terms of continuity. However, regardless of whether it's 28 days or 14 days, the period of overstaying itself is never counted as lawful residence. This was unequivocally confirmed by the Supreme Court in the landmark case of R (Afzal) [2023] UKSC 46.

The Impact of Asylum Claims and Immigration Bail on Lawful Residence

Many individuals find themselves in a complex immigration status while awaiting decisions on asylum or human rights claims. During these periods, they might be on:

• Temporary Admission: A status granted to individuals who have not been formally granted leave to enter or remain in the UK but are permitted to enter temporarily.

• Immigration Bail: Granted to individuals detained under immigration powers, allowing them to be released from detention while their case is ongoing.

Under the current Appendix Long Residence rules, time spent on temporary admission or immigration bail does NOT count as lawful residence for the 10-year long residence route. While these periods generally do not break the continuity of residence, they do not contribute to the lawful element required for the 10-year calculation. This is a critical point that can significantly extend the time an applicant needs to qualify for ILR.

Example Scenario: Piecing Together a Complex Timeline

Let's consider a hypothetical scenario similar to one we recently advised on:

• Entry to UK: 1 May 2015 with valid leave.

• Leave Expires: 20 June 2016 (following an Administrative Review refusal).

• Asylum Claim Submitted: 24 June 2016 (4 days after leave expired, within the 14-day grace period of the refusal letter).

• Period on Temporary Admission/Immigration Bail: 24 June 2016 – 4 May 2023.

• Granted Partner Leave: 4 May 2023.

In this example, applying the rules as discussed:

1. The 4-day gap (20 June 2016 – 24 June 2016): This period of overstaying occurred before November 2016. While it is disregarded for continuity purposes (as it's within the 28-day old rule and even the current 14-day rule), it does not count towards lawful residence.

2. The Asylum/Immigration Bail period (24 June 2016 – 4 May 2023): This period, although it does not break continuity of residence, does not count towards the 10 years of lawful residence.

3. Calculation of Lawful Residence:

   • Lawful residence accrues from 1 May 2015 to 20 June 2016.

   • The clock effectively pauses from 21 June 2016 until 3 May 2023.

   • Lawful residence resumes from 4 May 2023.

Therefore, in this scenario, the individual would need to continue accruing lawful residence from May 2023 and would likely only reach the 10-year lawful residence mark in May 2032.

Why Expert Advice is Indispensable

The intricacies of the 10-year Long Residence route, especially with historical gaps, changes in immigration status, and evolving legal precedents like Afzal, mean that professional legal advice is not just helpful – it's often essential. Miscalculating your lawful residence period or misunderstanding the impact of specific gaps can lead to disappointment, wasted application fees, and significant delays.

At Visa Solutions UK Immigration Lawyers, we have 13 years of experience navigating these complex rules. We stay abreast of all updates, including the latest Home Office policy changes (such as HC 1333, HC 997, HC 836, HC 733, HC 334, HC 217, HC 590, HC 556, HC 246, HC 1780, HC 1715, HC 1496, HC 1160), to ensure our advice is accurate and up-to-date.

We can help you:

• Accurately calculate your lawful and continuous residence.

• Identify any potential issues or gaps in your timeline.

• Advise on the best strategy for your ILR application.

• Prepare and submit a robust application on your behalf.

Don't leave your future to chance. If you believe you are nearing your 10-year long residence milestone, contact us for expert guidance.

To discuss further or to start the process, book your 10-Minute Consultation & Advice Session for £60 (All sessions are conveniently held via video or audio call on Google Meet)

For quick clarity on your specific questions, we recommend booking a 10-Minute Consultation & Advice Session. This focused £60 session is the ideal way to get a fast, expert answer to confirm your next steps. Should you decide to proceed with our Full Service later, the consultation fee will be credited towards your total.

You can book your 10-minute session here: https://www.visa-solutions.co.uk/service-page/consultation-via-video-audio-call

As registered Immigration Lawyers with the IAA at Level 3 - Advocacy & Appeals, we can provide expert guidance and legal representation for all types of UK Visa Applications (including EU Settlement Scheme) and British Citizenship Applications.

General Information Notice: Please note that the content provided here is for informational purposes only and is not a substitute for legal immigration advice. We are not responsible for any actions taken based on this free information.