Ten years’ long residence rule - settlement - problematic issues

05 December 2019

The case of Asiya Islam recently got into the media. She was a Cambridge PhD student who applied to the Home Office for indefinite leave to remain (settlement) on the basis of ten years’ continuous lawful residence.

This means more or less what it says: a person who has lived in the UK lawfully for ten years - under any kind of visa or combination of visas - may be able to apply for settlement on this basis. There are a few criteria that have to be satisfied, including that the applicant has not been outside the UK for too long during that ten-year period, otherwise the residence is not deemed to be "continuous".

This is a standard requirement for settlement applications which are based on being in the UK for a certain period, as most but not all of them are. In the case of the ten-year long residence rule this requirement is relatively strict: the applicant must not have been outside the UK for more than 540 days during the ten-year period. There is also another, associated requirement: the applicant must not have spent more than six months outside the UK on any one occasion.

Ms Islam’s application was refused, it seems, because she had transgressed at least one of these rules. She had spent about one year in India carrying out research for her PhD, and of course the damage was done. Whether or not she had broken the 540-day rule she had certainly broken the six-month rule.

The media reports that she intends to appeal to the Immigration Tribunal against the decision - but, the question is, can she succeed?

If the case does indeed come before the Tribunal the Tribunal has to decide whether the Home Office’s decision was in accordance with the relevant law: in this case that part of the immigration rules that deals with long residence applications.

As the courts have sometimes reminded us, the immigration rules must be interpreted in a straightforward fashion - ie they mean what they say. The 540-day and six month requirements are clearly stated and, however much sympathy a Tribunal judge might have with an appellant such as Ms Islam, the maths are the maths.

Might there be another way in which she could succeed in an appeal? Might she be able to rely on human rights principles? We do not know the details of any family life in the UK, but that might be difficult. Human rights law does not always easily come to the rescue of applications that fail under the immigration rules.

There is one other possible avenue. The relevant Home Office policy guidance issued to its own staff says: "it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances". But would Ms Islam’s situation exhibit such a "compelling or compassionate" circumstance? Well, probably not, but it might be worth a try: some immigration judges are very sympathetic.

But in any event, and whatever happens, this case has caused a bit of a storm in English academic circles, of which the general tenor has been that the decision was unfair and damaging to the UK and its reputation.

However, at the risk of seeming pedantic and officious, we would like to suggest that it is a very good idea to get good legal advice about your immigration application before you make it. And in a case like this, which involves a long qualifying period, it is appropriate to get advice at an early stage.

Many people, like Ms Islam, believe that they are on a ten-year route to settlement but in fact they are not, because there is some serious adverse matter in their immigration history of which they do not understand the significance. And recent caselaw from the higher UK courts has made the legal situation for ten-year long residence applications more difficult than it was previously. This application can now in some situations be a very tricky one.

The immigration rules and associated policy guidance are written in a way that is not always very easy to interpret and, in any case, sometimes supplementary legal knowledge is needed to interpret them correctly.

At Garth Coates Solicitors we have good knowledge and understanding of the ten-year long residence rules, and if you have issues about this subject we can give you good advice.

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