Indefinite leave to remain - ten-year route - overstaying

09 July 2019

We have had a few shocks from the courts in the last couple of years in the form of hard decisions in the Ankara Agreement and Tier 1 Entrepreneur visa fields.

And now there are two more decisions, one from the Upper Immigration Tribunal and one from the Court of Appeal, about indefinite leave to remain and the ten-year continuous lawful residence rule. Both cases, coincidentally, are called "Ahmed".

There is a longstanding provision in the immigration rules that allows migrants to acquire indefinite leave to remain on the basis of ten years’ "continuous lawful residence". It sometimes happens that a person comes to the UK as, for example, as a student and they study here for a few years and then they switch to, for example, a family visa or a working visa and they stay here for a few more years.

It can happen that such a person may clock up ten years’ leave in total but that they have not yet acquired indefinite leave to remain (settlement). This could be because some visa routes (eg student, Tier 2 ICT) do not lead to settlement and other routes require at least five years’ leave before indefinite leave to remain becomes a possibility.

With the ten-year visa route the question of "gaps" sometimes emerges. In the ideal world a migrant would in every case apply for their new leave before their old leave expires and thus there would be no gaps in their immigration history.

But the Home Office - not being completely heartless it would appear - has created some ameliorating rules about this. The rules have become harsher over time but they still exist in some form. A migrant can - in certain narrowly defined circumstances - sometimes overstay for a period of a few days and then submit a new visa application.

If the new application is successful then their immigration status is restored and they stop becoming an overstayer. But does this mean that the overstaying is thus wiped off the record?

No, not really. However, the rules about the ten-year continuous lawful residence route seem to be very forgiving about historical short periods of overstaying. The rule that tells us about the requirements for indefinite leave to remain in this route appears to say that historical periods of overstaying will be disregarded where those periods of overstaying were subsequently "cured" by the rules in place at the time.

To put it in the simplest language, it appears that the Home Office will forgive (if not entirely forget) such historical short periods of overstaying. So - and as per the traditional understanding - a ten-year period of leave including one or more historical gaps might be deemed to be both continuous and lawful although, technically speaking, any period of overstaying did not in reality constitute lawful residence.

But the courts have now overturned that understanding. Looking closely at the rule they found deficiencies in its structure. This is not the first time that everybody thought that they understood a rule but the courts have found that the understanding was wrong.

The courts separated the concept of "continuous" from the concept of "lawful". To put it short, they said that, under a careful reading of the rule, even if leave might be continuous it could not be considered "lawful" if it included periods of overstaying. The Home Office practice of forgiving such periods of overstaying was, in these circumstances, wrong. If the Home Office had wanted to have such a practice that would not be wrong in itself, but in that case they would have had to write the rule more accurately.

They also said (perhaps rather controversially) that Home Office published policy guidance - which rather supported the Home Office practice of forgiving periods of overstaying - could not rescue the situation.

The effect of the courts’ decision might seem in a way counterintuitive. A migrant may have had a couple of short periods of overstaying in their immigration history but the Home Office has happily granted their visa extensions and effectively said "don’t worry, you’re fine, you can carry on".

But now, with this new legal understanding, presumably when such a migrant applies for indefinite leave to remain on the basis of ten years the Home Office is going to say "do worry, you’re not fine, we’re refusing your application".

But bearing in mind that one fairly senior court and one very senior court have decided in this fashion it is going to be difficult to argue about it. And, in fairness, it also seems to us that the courts’ close analysis of the rule - whilst it may seem harsh - is not notably wrong or illogical.

We can but hope that at some point the Home Office might get round to changing and clarifying the relevant rule or the policy guidance or both.

But, in the meantime, if you are thinking of applying for indefinite leave to remain on the basis of ten years’ continuous lawful residence but you have overstaying issues you are well advised to consult a good lawyer. At Garth Coates Solicitors we have extensive experience of this application.

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