In order to apply for Indefinite Leave to Remain under the Long Residence category the applicant must meet the following requirement:
- the applicant must have at least 10 years continuous lawful residence in the UK
- there must be no reason why granting leave is against the public good
- the applicant must meet the knowledge of language and life requirement
- the applicant must not fall for refusal under the general grounds for refusal
- the applicant must not be in breach of immigration laws except o for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016 o where overstaying on or after 24 November 2016, leave was never the less granted in accordance with paragraph 39E of the immigration rules
Continuous residence is considered to be broken if the applicant has:
- been absent from the UK for a period of more than 6 months at any one time
- spent a total of 18 months outside the UK throughout the whole 10 year period
- 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 they returned to the UK within 6 months)
Continuous residence is not considered broken if the applicant:
- is absent from the UK for 6 months or less at any one time
- had existing leave to enter or remain when they left and when they returned – this can include leave gained at port when returning to the UK as a non-visa national
- departed the UK before 24 November 2016, but after the expiry of their 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 the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, in ‘compelling or compassionate circumstances’ the Home Office may exercise discretion and grant the ILR (for example where the applicant was prevented from returning to the UK through ‘unavoidable circumstances’).
For all cases the Home Office must consider whether the individual returned to the UK within a reasonable time once they were able to do so
For the single absence of over 180 days the Home Office must consider how much of the absence was due to compelling circumstances and whether the applicant returned to the UK as soon as they were able to do so o you must also consider the reasons for the absence.
For overall absences of 540 days in the 10 year period the Home Office must consider whether the long absence (or absences) that brought the applicant over the limit happened towards the start or end of the 10 year residence period, and how soon they will be able to meet that requirement o if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements, however, if the absences were recent, the person is unlikely to qualify for a long time, and so the Home Office must consider whether there are particularly compelling circumstances. All of these factors must be considered by the Home Office together when determining whether it is reasonable to exercise discretion.