Indefinite Leave to Remain – Does Overstaying Affect Your Ten Year ILR Application?

Posted onNovember 23, 2020

Most applicants for Indefinite Leave to Remain worry that they will meet the eligibility criteria for ILR, especially where there has been an element of overstaying and a questionable Immigration record. In this blog we look at the impact of overstaying on the lawful residence requirement for a ten year Indefinite Leave to Remain application.

UK Immigration and Indefinite Leave to Remain solicitors

London based OTS Solicitors specialise in immigration law. If you would like to apply for Indefinite Leave to Remain and need specialist immigration law advice call the friendly expert team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conferencing, Skype or by telephone appointment.

What are the Immigration Rules on lawful residence and ten year ILR applications?

If you’re not a British citizen but you have lived in the UK for the last ten years you may meet the eligibility criteria for Indefinite Leave to Remain provided that your residence in the UK was both continuous and lawful for a ten year period prior to your ILR application.

The eligibility criteria for ILR on grounds of long residence or ten years residence are that:

You have spent at least ten years residing in the UK continuously and lawfully and
Your ten year period of lawful residence is what is referred to as ‘unbroken’ and
There are no public interest reasons why it would be undesirable for the Home Office to give you Indefinite Leave to Remain and
There are no general grounds for refusing your ILR application and
You have sufficient knowledge of the English language and are exempt from the English language test or have passed the English language test and
You have passed the life in the UK test and
You aren’t in the UK in breach of Immigration laws.

When is the ten year period of lawful residence broken by an ILR applicant?

An applicant for Indefinite Leave to Remain will have a break in their lawful residence if at any time during the ten year period they:

Were absent from the UK for more than eighteen months in total or
Were absent from the UK for more than six months at any one time or
Were absent from the UK for less than six months but either had no lawful leave on departure or return or
Were deported or removed from the UK or
Left the UK after having been refused leave to enter or leave to remain or
Showed a clear intention not to return to the UK when leaving the UK or
Left the UK with no reasonable expectation of being able to lawfully return to the UK or
Were sentenced to a period of imprisonment.

Can the Home Office exercise discretion on lawful residence?

The Home Office has the ability to exercise discretion to grant Indefinite Leave to Remain based on ten years lawful residence if the ILR applicant has been absent from the UK for more than 540 days in total or there has been a single absence of more than six months. To secure Indefinite Leave to Remain despite absences an ILR applicant has to show that the absence or absences were for an exceptional or compelling reason.

Can you have overstayed and still secure Indefinite Leave to Remain based on ten years UK residence?

Many applicants for Indefinite Leave to Remain have a ‘blip’ in their Immigration record. Sometimes, that can involve ‘overstaying’ at the end of their visa because of a delay in submitting the paperwork to the Home Office for a new visa. In those situations, Indefinite Leave to Remain solicitors will carefully examine the Immigration Rules and the applicant’s circumstances to try to secure ILR.

Overstaying is dealt with in the Immigration Rules in rules 276B and 39E. Immigration solicitors use those rules to provide an exception for over stayers applying for Indefinite Leave to Remain based on ten years residence. The court has ruled on a number of times on ILR applications where there has been an element of over staying, most recently on the 23 October 2020 in a case called Hoque & Ors v SSHD 2020 EWCA Civ 1357.

In the case of Hoque & Ors v SSHD, the court of appeal were asked to look at a number of applications for permission to appeal, three of the applications related to the correct interpretation of paragraph 276B of the Immigration Rules and the circumstances in which overstaying may be disregarded by Home Office officials under Immigration Rule 276B(v).

In each of the three cases, there had been a period of overstaying before each Indefinite Leave to Remain applicant had secured their ten years of continuous lawful residence and so each ILR applicant relied on 276B(v). The Home Office said that the subparagraphs under 276B of the Immigration Rules were self- contained and so the ILR applicants could not use the overstaying disregard provisions when applying for Indefinite Leave to Remain based on ten years lawful residence.

Paragraph 276B of the Immigration Rules says that:

The requirements to be met by an applicant for Indefinite Leave to Remain on the ground of long residence in the UK are that:

(i) (a) The applicant has had at least ten years continuous lawful residence in the UK and at

(v) The applicant must not be in the UK in breach of Immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) The previous application was made before 24 November 2016 and within 28 days of the expiry of leave or

(b) The further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

The case of Hoque & Ors means that when Indefinite Leave to Remain solicitors are considering if an applicant for ILRmeets the eligibility criteria where over staying is an issue, then historical overstaying, such as overstaying between periods of leave to remain, may be allowed where paragraph 39E of the Immigration Rules applies. However, unless the Indefinite Leave to Remain applicant has already been in the UK for at least ten years on a lawful and continuous residence basis and the requirements of 39E disregard apply, any period of current overstaying will not be allowed on a ten year Indefinite Leave to Remain application.

The complexity of the case of Hoque & Ors and earlier court decisions means that if you have any doubts over whether you meet the eligibility criteria for an Indefinite Leave to Remain application it is best to take specialist legal advice from Indefinite Leave to Remain solicitors so that they can look at all the circumstances of the case and how best to secure your Indefinite Leave to Remain.

If an immigration solicitor is of the expert opinion that you won't meet the eligibility criteria to apply for Indefinite Leave to Remain based on ten years lawful residence they can advise you on your other options, such as an application to extend your work visa or family visa or to switch visa. If it is a case of over staying or asking the Home Office to exercise discretion then your Indefinite Leave to Remain solicitor can put your best ILR case forward to try to secure Indefinite Leave to Remain status for you.

How can OTS Solicitors help?

If you are interested in applying for Indefinite Leave to Remain then it is best to get expert legal advice from specialist Indefinite Leave to Remain solicitors and immigration law experts who can advise on the best way to secure Indefinite Leave to Remain.

UK Immigration and Indefinite Leave to Remain solicitors

London based OTS Solicitors specialise in Indefinite Leave to Remain applications and Immigration law. If you need specialist immigration law advice on your Indefinite Leave to Remain application call the friendly expert team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conferencing, Skype or by telephone appointment.