What Does Continuous and Lawful Residence Mean When Applying for Indefinite Leave to Remain?

Posted onJanuary 18, 2022

Applying for indefinite leave to remain is one of those life changing events and its importance can't be underestimated as you will go from being subject to ‘immigration control’ to settled in the UK. To achieve indefinite leave to remain, immigration solicitors say one of the first steps is to check to see if you meet the continuous and lawful residence requirement for an indefinite leave to remain application.

UK Online and London Based Immigration Solicitors and Indefinite Leave to Remain Lawyers

For advice on your indefinite leave to remain application or help with any aspect of immigration law call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.

The indefinite leave to remain rules on continuous residence

The immigration rules on indefinite leave to remain status and continuous residence are to be found in ‘Appendix Continuous Residence’. The fact that the Home Office has devoted a whole appendix to the definition and rules on continuous residence should give you a clue as to just how complicated the rules are.

As the immigration rules on continuous residence are complex it is best to get your immigration solicitors to explain them well in advance of your planned indefinite leave to remain application. That way you can try to make sure you don’t encounter any problems in meeting the lawful and continuous residence requirement. For example, by scheduling trips overseas for work purposes or on extended family holidays, so you do not fall foul of the rules specifying how long you can stay out of the UK and still qualify for indefinite leave to remain.

What is the qualifying residence requirement for indefinite leave to remain?

When you apply to settle in the UK not only do you have to meet the general eligibility criteria and, depending on your visa, a financial requirement, you also need to meet the qualifying residence requirement.

You will need to meet the qualifying residence requirement if you are applying for indefinite leave to remain and you are in the UK a visa such as:

A skilled worker visa or Tier 2 (General) visa.
Global talent visa.
Innovator visa.
Sole representative visa.
Tier 2 Sportsperson or Minister of Religion visa.

The qualifying residence requirement consists of both lawful and continuous residence in the UK for a specified period. The length of the qualifying period depends on the visa route. For most indefinite leave to remain applicants this means you need to have lived in the UK for at least five years. There are exceptions and you may qualify for accelerated settlement, speeding up the route to indefinite leave to remain.

What does continuous residence mean?

In essence, to meet the continuous residence requirement you cannot have spent more than 180 days outside the UK during any rolling twelve-month period during the qualifying five-year residence period for your ILR application. How the twelve-month rolling period is calculated depends on the date of your visa as:

The twelve-month period ends on the same date of the year as the date of your application for ILR for time spent on a visa granted before the 11 January 2018 or
In any twelve-month rolling period for time spent on your visa if your visa was granted after the 11 January 2018.

There are some exceptions to the 180-day absence rule, meaning that some time out of the UK doesn’t count towards the 180-day rule. The most relevant exceptions are:

Travel disruption because of natural disaster, military conflict or pandemic. (The Home Office has confirmed COVID-19 falls within this category and special COVID-19 related concessions have been made) or
Compelling and compassionate personal circumstances. This includes severe illness of yourself or the severe illness or the death of a close family member or
Research activity carried out by you as a sponsored employee on a skilled worker visa if your job is sponsored under one of a number of specified occupation codes, such as chemical scientist, biological scientist and biochemist, physical scientist, social and humanities scientist, natural and social science professional, research and development manager and higher education teaching professional.
Research activity undertaken by you on a global talent visa if you are endorsed by The Royal Society, The British Academy, The Royal Academy of Engineering or UK Research and Innovation.

You can also breach the ILR continuous residence rules if you are present in the UK but:

You are convicted of a criminal offence and you are sentenced to imprisonment (unless the sentence is suspended ) or you are detained in an institution such as a hospital under a hospitalisation order or
You are made the subject of a deportation order, exclusion order or exclusion direction or
You are made subject to a removal direction or
You are in the UK but your presence in the UK is not lawful. However, even if you are an overstayer there are a limited number of exceptions that allow you to apply for indefinite leave to remain even though not all your time in the UK is classed as lawful.

What does lawful residence mean?

Not only does your qualifying period need to be continuous, it also needs to be lawful. You are not treated as lawfully present in the UK if you are in prison or hospitalised under a court order or if you did not have the necessary leave to remain unless paragraph 39E of the immigration rules applies to your lack of leave.

If you have overstayed on your visa then paragraph 39E of the rules may allow your period of overstay to be disregarded when considering your indefinite leave to remain application if your period of overstay was for a good reason beyond your control meaning that your visa application could not be made in time and the application was made within fourteen days of the expiry of leave. There are also COVID-19 related concessions that may be applicable to you.

Immigration lawyers say that it is always best to check that you meet the lawful and continuous residence requirements before you submit your indefinite leave to remain application as failure to prepare and check could result in your ILR application being refused. An indefinite leave to remain lawyer can either advise you to apply to extend your visa and apply at a later date for ILR or could advise you on the best way you can persuade Home Office officials that you fall within one of the exceptions under the immigration rules.

UK Online and London Based Immigration Solicitors and Indefinite Leave to Remain Lawyers

For advice on applying for indefinite leave to remain and help with any aspect of immigration law call the London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.