Applications on the basis of long residence in the UK

The Immigration and Nationality Directorate (IND) of the Home Office has for a long time had a policy of allowing people who have been in the UK for a very long time to settle (get Indefinite Leave to Remain, ILR) in the country. In April 2003, they made this a formal category under which people could apply to remain in the UK, by making it part of the UK Immigration Rules. After the incorporation of the new category in the rules, the Immigration and Nationality Directorate issued an internal instruction to give guidance where applications for settlement were made to the Home Office on the basis of long residence. Surprisingly, the internal instruction recorded that there was no category within the Immigration Rules under which settlement could be granted on the basis of long-residence. That was a cause of considerable confusion, as was the possible interplay between the Home Office's policy instruction and the long residence category in the Immigration Rules. There were a number of significant differences between the Immigration Rules and the policy guidance. It had been argued that the policy instruction provided guidance on the interpretation of the rules. That was rejected by the Asylum and Immigration Tribunal (AIT). The AIT found that the rules and the internal instruction provided separate frameworks for consideration of applications on the basis of long residence. That was helpful, as some people who did not qualify under the rules would have qualified for settlement under the terms of the policy instruction. The overlap ended in July 2006. By a notice dated 5th July 2006, the Home Office withdrew the policy instruction and indicated that all application for settlement would be considered on the basis of the category in the Immigration Rules. There are two categories under which settlement (Indefinite Leave to Remain, ILR) may be granted on the basis of long residence under the Immigration Rules. The first category is where you have been continuously lawfully resident in the UK for at least 10 years. The meaning of 'lawful' residence is explained in the Immigration Rules and short absences from the UK may be permitted. The second category where you have 14 years continuous residence in the UK. This may be a mixture of time spent lawfully or unlawfully, or potentially, where all of the time spent in the country has been unlawful. The clock will be stopped where enforcement action has been started against you. However, and even when the clock has not stopped, you cannot assume that because you have been in the UK for over 14 years, that you will automatically qualify for settlement. The Home Office will assess whether it is appropriate and in the public interest to grant your application by looking at all of the relevant circumstances, including your age, personal history, domestic circumstances, the existence of a criminal record and any other compassionate circumstances. That points to the importance of setting out the relevant facts clearly and getting proper legal advice before making an application to the Home Office. In a recent decision, MO (Long residence rule-public interest proviso) Ghana [2007] UKIAT 00014, the Asylum and Immigration Tribunal (AIT) examined the provisions of the Immigration Rule on long residence, and confirmed that an immigration judge had wide discretion in deciding whether the public interest justified a grant of settlement. MO was an overstayer; he had stayed in the UK after leave had run out. He had worked in the UK using a false identity. On that basis it was concluded by the immigration judge that his claim failed. The Asylum and Immigration Tribunal agreed with the immigration jude and upheld the decision. Clearly, it is unhelpful that there in no current Home Office guidance on the application of the rule. That may change, as the internal instruction is currently under review and may be re-issued.