In our previous blogs, we’ve looked at the Indefinite Leave to Remain (ILR) regime in the UK and how to regain this status through the Returning Residents visa. We’ll now take a look at one of the trickier ILR issues: continuous residence.

Continuous residence

One of the key eligibility requirements is being able to evidence to the Home Office that you have spent the necessary time in the UK prior to making your application for ILR. You will need to show that your residence has been continuous, and held validly, on a relevant visa(s). For most visas, the “qualifying period” of continuous residence will be 5 years, and our first blog in this series outlined the various qualifying periods for each applicable visa route.

For example, under the 10-year Long Residence route, the Home Office specifically excludes the time spent in the UK on a visitor visa, short-term student visa and seasonal worker visa from counting towards the continuous residence qualifying period. Therefore, when calculating residency, it is important to consider, not only the time spent within the UK, but how this time is spent.

The Home Office updated guidance on continuous residence published in April this year explores this area, however it remains a difficult topic to navigate. In this blog, we will break down some of its contents.

Absences

Residency must be continuous. Sufficient periods of absence will break your continued period of residency.

Continuous residence is broken if you have been outside the UK for more than 180 days in any 12-month period.

Under the 10-year Long Residence route, and prior to 11 April 2024, continuous residence is broken if:

• you have a single period of absence of longer than 184 days;
• you have absences totalling more than 584 days (no 584-day limit for 10-year periods which extend beyond 11 April 2024);
• from 11 April 2024, you must not have been outside the UK for more than 180 days in any 12-month period.

Only full days (24 hours) are considered absences.

If the qualifying period includes permission granted before 11 January 2018, any absences during that leave are considered in consecutive 12-month periods ending on the date of application. For permission granted on or after 11 January 2018, absences are considered on a rolling basis over any 12-month period.

Overstaying

Overstaying, when you remain in the UK after your previous leave has expired, will break your continued residency in the UK, unless certain circumstances apply.

The Home Office will disregard any period of overstaying if a new application is made within 14 days of the previous leave expiring and you can evidence ‘good reason’ for having overstayed. For example, being admitted to hospital for emergency treatment, illness, or a close family bereavement. We would strongly recommend providing supporting evidence such as a medical report or death certificate.

The period of time where you did not have permission will not break continuous residence but will not be counted towards the qualifying period as a period of lawful presence in the UK.

Any overstaying due to leave expiring between 24 January 2020 and 31 August 2020 (due to the COVID-19 pandemic) will be wholly disregarded.

For example, A’s permission was due to expire on 5 June 2024. A had intended to submit an extension application prior to their current visa expiry, however they developed an acute illness and were therefore unable to submit the extension application until 10 June 2024. A provided evidence by way of an official medical report verifying the illness, symptoms and dates they became unwell. The Home Office was satisfied that there were reasons beyond A’s control which prevented them from submitting an in-time application. The application was granted and continuous residence maintained.

Home Office discretion

In “compelling and compassionate circumstances”, the Home Office has the discretion to disregard excessive absences. Compelling and compassionate circumstances could include:

• serious illness of the applicant or a close relative;
• conflict; or
• natural disaster, for example, volcanic eruption or tsunami.

However, it should be noted that the Home Office does not dispense this discretion often and as such, any time spent outside the UK, or in the UK without valid immigration status, should be carefully considered when making an application for settlement.

Deportation and criminality

Continuous residence is usually broken if you have been detained, subject to a deportation or exclusion order, served with removal directions, or convicted of a criminal offence.

How can we help?

The Immigration Rules remain difficult to interpret. The Home Office guidance seeks to clarify any ambiguity, but as highlighted above, the complex drafting of the legislation, paired with the wide Home Office discretion, makes for a difficult combination for many applicants.

Our team of experienced immigration experts can help you navigate the complexities of continuous residence, to ensure that you get your application right first time!

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