Continuous Residence Guidance and Indefinite Leave to Remain Applications
As part of the Indefinite Leave to Remain application process you need to prove that you have been continuously resident in the UK for the relevant qualifying period. Normally that is five years but it can be reduced to three years if you qualify for accelerated settlement. In other situations, you may have to establish ten or more years of continuous residence.
In this blog, our Immigration Solicitors look at the definition of continuous residence, what a permitted absence from the UK means, and how time outside the UK affects your ILR application.
UK Online and London-Based Immigration Solicitors and Indefinite Leave to Remain Lawyers
For Indefinite Leave to Remain advice call London-based OTS Solicitors on 0203 959 9123 or contact us online.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
Are you on a route to settlement?
As Immigration Solicitors we don’t just see our job as getting your visa. We need to know what you want your visa for and your goals. If your priority is settlement in the UK then that may affect the immigration advice we give you on the best visa for your circumstances.
If you don’t get a visa that leads to settlement you will be in the UK longer before you are eligible to apply for ILR. That means you are subject to immigration controls and visa conditions for an extended period and will pay more in visa application and immigration health surcharge fees.
If you are on a route to settlement, it is important to understand the eligibility criteria for Indefinite Leave to Remain and the continuous residence rules for your route. Knowing the settlement rules when you first secure your visa means you are far less likely to encounter problems when you apply for ILR.
Continuous residence and settlement
Every ILR application requires a period of continuous residence in the UK before you can apply to settle. The rules on the length of continuous residence and permitted absences that apply to you depend on the nature of your visa. If you get the rules wrong then this can delay your settlement application. You may need to reset the clock on your UK continuous residence if you spend too long overseas and break your lawful and continuous residence.
If you entered the UK on one type of visa and then switched to another you may need to check if all your time in the UK counts towards your continuous residence as different rules apply to the definition of continuous residence and permitted absences for settlement purposes.
Appendix continuous residence
There is a Home Office Appendix on continuous residence and that’s a good start point if you are looking to settle in the UK and the Appendix covers your visa. The Appendix applies to holders of some of the main types of visas such as the Skilled Worker Visa.
Although the Appendix applies to various types of visa holders the rules on continuous residence are different depending on the visa and, with the Skilled Worker Visa, depending on your job and standard occupational classification code.
The definition of continuous residence
The continuous residence qualifying period is the length of time you must have lived in the UK without significant breaks to qualify for UK settlement. In the case of Skilled Worker Visa holders, the period is five years but the five years can be calculated taking into account permitted absences.
The rules on permitted absences for Skilled Worker Visa holders applying to settle in the UK
The Home Office guidance says most ILR applicants must not have been outside the UK for more than 180 days in any rolling 12-month period. The rules are different if you are applying for ILR using the ten-year long residence route.
The immigration rules go on to say that your UK continuous residence is not broken even if you exceed the permitted 180 days in a rolling 12-month period if your absence from the UK counts as a permitted absence.
The exceptions for permitted absence are contained in Appendix Continuous Residence and include:
- Travel disruption due to natural disasters, military conflict or pandemic
- The ILR applicant was assisting with a national or international humanitarian or environmental crisis overseas - but if the applicant was on a sponsored route their sponsor must have agreed to the absence for that purpose
- Compelling and compassionate personal circumstances, such as the life-threatening illness of the ILR applicant or the life-threatening illness or death of a close family member
- Research activity undertaken by a Skilled Worker Visa holder and approved by their sponsor provided the Skilled Worker Visa holder was employed with a qualifying standard occupational classification code. The qualifying codes are 2111 Chemical scientists, 2112 Biological scientists, 2113 Biochemists and biomedical scientists, 2114 Physical scientists, 2115 Social and humanities scientists, 2119 Natural and social science professionals not elsewhere classified, 2161 Research and development managers, 2162 Other researchers, unspecified discipline and 2311 Higher education teaching professionals
An ILR applicant will need to provide evidence that they meet the continuous residence requirement and, if they are relying on permitted absences, prove that their absence did fall within one of the exceptions.
Proving an absence falls within the definition of a permitted absence
The onus is on an ILR applicant to prove that any extended absence falls within one of the exceptions. In some situations, it may be relatively straightforward to prove you fall within an exception provided you supply the right evidence. For example, evidence that you were overseas carrying out research with the approval of your sponsor and that your job falls within one of the authorised standard occupational classification codes for this exception.
It is far harder to evidence that you fall within the exception of compelling and compassionate personal circumstances. Examples given by the Home Office include the life-threatening illness of the ILR applicant or the illness or death of a close family member. Evidence should not just be a statement of the ILR applicant but be backed up with evidence, such as a letter from a doctor or death certificate and proof of the relationship between the ILR applicant and the deceased and outlining the reasons why the applicant was unable to return. For example, the sudden death of a close family member left the applicant with immediate but temporary caring responsibilities for another family member.
An ILR applicant’s options when the Home Office doesn’t accept that their absence from the UK was a permitted absence
If an ILR application was refused on the basis that the continuous residence eligibility criteria were not met you can ask for an administrative review of the decision. Potentially you can appeal if you think that the Home Office should have been satisfied with your evidence that your absence fell with a permitted absence exception and your claim involves human rights.
With an administrative review, you are arguing that the Home Office official made a mistake based on their assessment of your ILR application. It is unusual for the Home Office to allow you to submit extra evidence in an administrative review so it is important to get expert legal advice from ILR Lawyers if you need to put in an ILR application saying that your absences should be classed as permitted under the compelling and compassionate circumstances ground.
In some cases, our Immigration Solicitors may conclude your best option is to apply for a further visa, wait and then make a fresh ILR application once you have a clear case that you meet the continuous residence requirement.
Our ILR Lawyers are always happy to speak to you about your settlement plans and explain how we can best help you secure Indefinite Leave to Remain status.
UK Online and London-Based Immigration Solicitors and Indefinite Leave to Remain Lawyers
For Indefinite Leave to Remain advice call London-based OTS Solicitors on 0203 959 9123 or contact us online.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
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