INDEFINITE LEAVE TO REMAIN – 10YRS

ILR 10 year-rule

Have you spent 10 continuous lawful years in the UK? If so, you may be eligible for permanent residence, which is also known as Indefinite Leave to Remain or ILR.

To qualify for ILR under the 10 year-rule you will need to show that you meet certain requirements:

What are the eligibility requirements for ILR under the 10 year-rule?

To meet the ILR 10 years rule requirements you must be in a position to show that:

  • You have spent a period of at least 10 years residing in the United Kingdom continuously and lawfully; and
  • There are no public interest reasons why it would be undesirable to grant you indefinite leave to remain; and
  • There are no general grounds for refusing your application (such as a relevant criminal conviction); and
  • You have sufficient knowledge of the English language; and
  • You have passed the life in the United Kingdom test; and
  • You are not in the United Kingdom in breach of immigration laws, except for permissible period of overstaying.

 

What is Lawful residence?

Lawful residence includes:

  • Existing leave to enter or remain
  • Temporary admission within section of 11 of the 1971 Immigration act where leave to enter or remain is subsequently granted
  • 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

 

What is continuous lawful residence?

 Your 10 year-period of lawful residence must be unbroken. Your residence will be regarded as broken if at any time during the period you are hoping to rely on:

  • You were absent from the UK for more than 18 months in tota throughout the whole 10 year-period
  • You were absent from the UK for a period of more than 6 months at any one time
  • You left the UK before 24 November 2016 with no valid leave to remain on their departure from the UK, and failed to apply for entry clearance within 28 days of their previous leave expiring (even if you returned to the UK within 6 months)

 

What constitute a gap in Lawful Residence?

 The Home Office will normally grant an application if you can show that:

  • You had short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016; and / or
  • You had short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules*; and
  • All the other requirements for lawful residence

 

*39E 1 provides that you would need to have made the application within 14 days of your leave expiring and that the Secretary of State considered then that there was a good reason beyond your control or that of your representative, why the application could not have been made in-time.

 

Time spent outside the UK

The Home Office will not regard your leave as being broken if:

  • you are absent from the UK for 6 months or less at any one time
  • you had existing leave to enter or remain when you left and when you returned – this can include leave gained at port when returning to the UK as a non-visa national
  • you departed the UK before 24 November 2016, but after the expiry of your leave to remain, and applied for fresh entry clearance within 28 days of that previous leave expiring, and returned to the UK within 6 months. If you had existing leave to enter or remain when you left and returned to the UK, the existing leave does not have to be in the same category on departure and return.

For example, you could leave the UK as a Tier 4 (General) student and return with leave as a spouse of a settled person. Continuous residence is not broken as you had valid leave both when you left and returned to the UK.

If you have been absent from the UK for more than 6 months in one period or more than 18 months in total, your application should normally be refused. However, the Home Office may find it appropriate to exercise discretion over excess absences if you can show compelling or compassionate circumstances, for example where you were prevented from returning to the UK through unavoidable circumstances.

We are often asked how the Home Office check absences. From our experience, they will compare the information in your form against the stamps in your passport(s) and the records they have on their warehouse system, which will include your landing cards, when applicable. If you have poor records of your absences you may want to file a subject access request asking for a copy of your Immigration file, in particular, your landing cards before proceeding with your ILR application.

 

How is the public interest considered?

 As part of their assessment the Home Office will consider whether there are any reasons of public interest why your settlement application should not be approved, taking into account your:

  • Age;
  • Strength of connections in the UK;
  • Personal history (e.g. character, conduct, associations, and employment record);
  • Domestic circumstances;
  • Compassionate circumstances; and
  • Any representations submitted on your behalf.

 

What are the ‘relevant criminal convictions’? 

The Home Office will also take into consideration any relevant criminal conviction when assessing your application.

Amongst other grounds, your application will be refused if you:

  • Have ever been sentenced to imprisonment for 4 years or more; or
  • You have ever been sentenced to imprisonment for between 12 months and 4 years, but less than 15 years has passed since the end of your most recent such sentence; or
  • You have ever been sentenced to imprisonment for less than 12 months but less than 7 years have passed since the end of your most recent such sentence; or
  • Within the 2 years immediately prior to the date your application is decided you have been convicted of, or admitted, an offence for which you either received a non-custodial sentence (such as a fine or community sentence) or for which an out of court disposal is recorded on your criminal record (such as a penalty notice or caution).

 

What is regarded as a breach of immigration laws?

 To qualify you must not be in breach of immigration laws, the applicant must not be in breach of immigration laws, except:

  • for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016
  • where overstaying on or after 24 November 2016, leave was never the less granted in accordance with paragraph 39E* of the immigration rules.

 

Do I need to pass the Life in the UK Test?

Before applying for ILR most applicants will be required to have passed the Life in the UK test.

The test is made up of 24 questions about British history, culture, customs and traditions.

Questions range from the roman invasion leader to the UK’s national flowers / bank holidays, the date of when women were first given the right to vote, or the number of times the UK hosted the Olympic games, ..etc.

The test is a multiple-choice exam, which is delivered at an official test centre and lasts approximately 45 minutes.

You can book the test on the Gov.UK website.

It is highly recommended to read the Life in the UK book before taking the test.

Do I need to show Knowledge of the English language?

We are often asked if having passed the Life in the UK test, one must still show that they meet the English language requirement.

The answer is, in most cases, yes.

Since October 2013 all applicants applying for settlement, unless exempt, are required to pass the Life in the UK test and have an English speaking and listening qualification at B1 CEFR level or above.

Acceptable evidence of passing the English Language requirement

You can meet the requirement if you have one of the following:

  • Passed an English language test at B1 level or above which is on the approved UKVI list
  • A qualification (degree/masters/PhD) taught or researched in English – the qualification must be equivalent to a UK qualification – a NARIC assessment might be required
  • A passport issued by an English-speaking country

 

What is the ILR process for applications filed under the 10 year-rule?

Processing time:

It depends on how you file your application.

Applications filed via one of the premium service centres are usually processed on the day of filing.

NOTE: Whilst the decision is made on the same day, the Biometrics Residence Permit (BRP) is normally sent within 7-10 working days from the day of filing.  As the applicants’ current BRPs are retained, applicants are often surprised to find out that despite having paid for the same day service they find themselves unable to travel out of the UK until they are in possession of their new BRP.

Applications made by post can take up to 6 months. Applicants are expected to relinquish their original documents, including passports and BRPs throughout the adjudication period which will preclude them from making trips abroad.

Date of application:

When is the earliest I can apply for settlement under the 10 year-rule?

The earliest you can apply is 28 days before you reach the end of the qualifying period – ie 10th year of your continuous lawful residence.

Can I include my dependants?

An application for settlement on the grounds of long residence is an individual application.

It follows that any dependants will be required to submit separate applications in their own right.

Children born in the UK may not need apply as they might already be entitled to British Citizenship by Registration upon their parent having been or being granted indefinite leave to remain in the UK.

If you would like to discuss your eligibility for settlement on the basis of 10 years long residence or if you require expert legal assistance in connection with a 10 year- LR application please contact us.