Indefinite Leave to Remain and New Appendix on Continuous Residence Requirements

On the 22 October 2020 the government put before parliament a document with the title ‘Statement of Changes to the Immigration Rules HC 813’. This 500 plus page document not only provides additional information on the new UK points based Immigration system but also makes introduces a new appendix covering the continuous residence requirement. If you are planning to make an Indefinite Leave to Remain or settlement application it is best to take legal advice on the continuous residence requirements and how the rules may affect you.

UK Immigration and Indefinite Leave to Remain solicitors

If you have an immigration law query or need legal advice on a visa or settlement application our specialist immigration lawyers can help you. For expert friendly immigration law advice call OTS Solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available by video conferencing, Skype or by telephone.

What is the continuous residence requirement?

If you entered the UK on a visa and are subject to Immigration controls then you may want to apply to settle in the UK by submitting an application to the Home Office for Indefinite Leave to Remain. As well as meeting the general eligibility criteria for an application for Indefinite Leave to Remain you will also need to meet the continuous residence requirement for your visa category.

Many Indefinite Leave to Remain applicants find it strange to think that as well as meeting all the ILR general eligibility criteria they have to meet the continuous residence requirement to be able to settle in the UK but the residence requirement is designed to prevent visa applicants securing work visas, family visas or other types of visa and then using the visa as a means to later apply for Indefinite Leave to Remain without having actually lived in the UK during the period of their visa. Continuous residence, for the purposes of an Indefinite Leave to Remain application, is therefore about the minimum residence requirements during your visa to meet the eligibility criteria for Indefinite Leave to Remain.

What visa categories do the statement of Immigration Rules changes apply to?

The new continuous residence appendix applies to most routes but not to the appendix FM and appendix EU Settlement Scheme EUSS routes.

How is the continuous residence requirement met?

An applicant for Indefinite Leave to Remain will meet the continuous residence requirement if they have spent what is referred to as the ‘qualifying unbroken continuous residence period’ required by their visa category to apply for ILR.

Unsurprisingly, an Indefinite Leave to Remain applicant can spend some time out of the UK whilst on a visa. The continuous residence appendix says that to meet the continuous residence requirement an applicant mustn’t have been outside the UK for more than 180 days in any twelve month period during their visa unless:

• It was absences from the UK with permission granted under the rules in place before 11 January 2018, an ILR applicant must not have been outside the UK for more than 180 days during any consecutive twelve month period, ending on the same date of the year as the date of the application for ILR
• When calculating the 180 day absence time spent outside the UK doesn’t count towards the 180 day limit if the absence was for:
  • Assisting with a national or international humanitarian or environmental crisis overseas (if the applicant is sponsored their sponsor has to have agreed to the absence)
  • Travel disruption because of natural disaster, military conflict or pandemic
  • Compelling and compassionate personal circumstances, for example, a life-threatening illness of the ILR applicant or the life-threatening illness or death of a close family member of the ILR applicant
  • Research activity undertaken by an Indefinite Leave to Remain applicant who is on a Skilled Worker visa and the activity was approved by their sponsor and the sponsored job was in a specific occupation code. The occupations are chemical scientist, biological scientist and biochemist, physical scientist, social and humanities scientist, natural and social science professionals not elsewhere classified, research and development managers, and higher education teaching professionals
  • Research activity undertaken by an Indefinite Leave to Remain applicant in the UK on a global talent visa endorsed by either The Royal Society, The British Academy, The Royal Academy of Engineering or UKRI.

Can an ILR applicant break their continuous residence whilst in the UK?

The continuous residence appendix confirms that an Indefinite Leave to Remain applicant can still break their continuous residence in the UK. An ILR applicant’s continuous residence period is broken if they are:

• Convicted of an offence and sentenced to a period of imprisonment (unless the prison sentence is a suspended sentence)
• Directed to be detained in an institution other than a prison
• Made the subject of a deportation order
• Made subject to an exclusion order or exclusion direction
• Made subject to a removal directions under section 10 of the Immigration and Asylum Act 1999
• If the applicant doesn’t have permission to be in the UK unless paragraph 39E of the Immigration Rules apply or in other limited circumstances.

Calculating the continuous residence period for an ILR application

The continuous residence period is calculated by counting back from the prescribed date that is the most beneficial to the Indefinite Leave to Remain applicant, namely:

• The date of the ILR application or
• Any date up to twenty eight days after the date of the ILR application or
• The date of the ILR decision
• If applying for Indefinite Leave to Remain under the UK Ancestry route, the date of their last grant of visa permission.

Continuous residence and checking the rules

Immigration solicitors advise that the rules on continuous residence are complicated. It is therefore best to get legal advice from an Indefinite Leave to Remain solicitor before submitting an ILR application. Not doing so could result in your Indefinite Leave to Remain application being rejected.

How can OTS Solicitors help?

OTS Solicitors are specialist firm of London based lawyer recommended for immigration law in the law directories, Chambers Guide to the Legal Profession and Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.

For more information on applying for Indefinite Leave to Remain or the continuous residence requirements or on any other aspect of personal or business immigration law call the expert Indefinite Leave to Remain solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available by video conferencing, Skype or by telephone.