Long residence rule: new Home Office guidance

The Border and Immigration Agency (BIA) in the UK Home Office has issued new guidance to caseworkers on the long residence rule.

The Home Office has for a long time had a policy of allowing people who have been in the UK for a very considerable period 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. 

Until 5 July 2006 applications on the basis of long residence were considered under two separate frameworks, applications on the basis of UK immigration rule and applications based on Home Office policy as set out in the Border and Immigration Agency (BIA) instructions to its caseworkers.  On 5 July 2006, the instructions to caseworkers were withdrawn and it was stated that applications on the basis of long residence would be considered only under the UK immigration rules, but that new guidance was in preparation. That guidance has taken a year to produce, but has now been published.

The Border and Immigration Agency guidance to caseworkers is not law. It is always open to the Border and Immigration Agency to exercise its discretion to treat a person more favourably than its guidance provides. The guidance will not be lawful if it contradicts the immigration rule on which it purports to provide guidance but may make provision that is more generous than the immigration rules or deals with situations not expressly addressed in the immigration rules. If guidance exists then a person can expect to be treated no less favourably than the guidance provides unless there are good reasons for departing from the guidance in the particular case.

The guidance on long residence does not recreate the two separate regimes of applications under the UK immigration rules and applications under the Home Office Policy.  Instead, the guidance states that where an applicant meets the requirements of the immigration rules they should be granted indefinite leave to remain on the basis of long residence; where they do not, they should not.

The guidance does however set out some guidance on how the Border and Immigration Agency will apply the rule, including how it will exercise its discretion to treat people as meeting the requirements of the rule.  Some examples are given here. They are not an exhaustive description of matters covered in the guidance.

The long residence rule requires continuity of residence: 10 years lawful residence, or 14 years residence whether lawful or unlawful. The guidance states that continuity of residence should be considered to have been broken if the person has spent more than 18 months outside the UK during the relevant period.  Within that overall limit, the guidance provides that continuity will not be treated as being broken by absences from the UK of up to 6 months, provided that the applicant had existing leave to remain when she or he left the UK and when he or she returned.  Thus a person who left the UK at the end of their studies and returned a month later on a working holidaymaker visa would not fall within the guidance on long residence.

The guidance provides details of the situations in which continuity of residence is broken because of the service of notices requiring the applicant to leave the UK.

The guidance provides that a prison or other custodial sentence breaks continuity of residence.  A person cannot count any time spent in the UK before their imprisonment towards continuity of residence.  A suspended sentence does not break continuity of residence.

The immigration rule on long residence talks about people having leave to enter or remain in the UK and thus does not deal with family members of European Economic Area (EEA) nationals who do not require such leave. The guidance addresses this situation, which is not covered by the rule.  It explains that those exercising Treaty rights under European law are in the UK lawfully and can that such residence can therefore be treated as lawful residence for the purposes of the rule. 

The long residence rule sets out the circumstances in which a person may be considered for indefinite leave to remain.  The guidance specifies that people who meet the continuous residence requirements should normally be given ILR unless this is against the public interest. It emphasises that the question of a person’s character, conduct and associations goes beyond the question of criminal convictions.  It states that:

‘the main purpose of the two Long Residence rules is to enable people who have been working here, or otherwise contributing to the economy, to regularise their position….It will not normally be in the public interest to grant ILR under these Rules to someone unless he has been economically self-sufficient for a significant period of the time he has been here.’

The rule offers an opportunity for people who have been in the UK lawfully for a considerable period, but without meeting the requirements for indefinite leave to remain, to make the UK their permanent home. It also offers an opportunity for those who are in the UK without lawful leave to regularise their position and become legally resident. Home Office guidance can be changed frequently, and the immigration rules themselves change. It is important to understand your position in the light of the rules and guidance currently in force. People who think that they may qualify under the long residence rule should consider taking legal advice on their position under the rule.