Tag: Indefinite Leave

Requirements for indefinite leave to remain on the basis of long residence in the UK

Those migrants who have accrued 10 years’ lawful residence in the UK may be eligible to apply for indefinite leave to remain (settlement).

However, simply residing in the UK lawfully for 10 years continuously is in itself not sufficient to be eligible for indefinite leave to remain on this basis.

Indefinite Leave Requirements

In order to qualify for indefinite leave to remain based on long residence, the following requirements must be met by Applicants.

Firstly, an applicant must have valid leave to remain in the UK at the time of application. In other words, an Applicant must be lawfully resident in the UK when they make an application for indefinite leave to remain on the basis of their long residence. This leave can be in any immigration category.

Applicant must also have been in the UK for 10 years lawfully and kept to the terms and conditions of their visas. It is possible to combine periods of leave in any immigration category when applying on the basis of long residence. However, it is important that, firstly, there are no gaps between visas that may break an Applicant’s continuous residence, and, secondly, the Applicant complied with the terms of all their visas while in the UK.

Secondly, if and Applicant is aged 18 to 65 years old, they must meet the knowledge of language and life (KoLL) in the UK requirements. All those applying for indefinite leave to remain (ILR) under a route which requires KoLL, must meet both parts of the requirement, unless they are exempt because of their age or because of a physical or mental condition.

There are two aspects to KoLL, namely knowledge of language and knowledge of life in the UK, that must be met by an Applicant applying to settle in the UK.

Finally, and most importantly, Applicants must be able to demonstrate that they have continuously resided in the UK. In the case of R (Nesiama & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 1369, the Court of Appeal recently gave guidance on what constitutes “residence” in the UK.

Physical Presence

In this case the Court of Appeal found that “residence” in the UK means “physical presence” in the UK.

It was argued in the above case that “residence” should be assessed taking into account factors such as property, payment of taxes and other connections to the UK, rather than simply “physical presence”.

However, the Court of Appeal was not convinced by this argument and held that in order to be considered resident in the UK, an Applicant needs to be physically present in the UK. Therefore, excessive absences, other than are for the purpose of assisting with a national or international humanitarian or environmental crisis overseas, or due to “serious or compelling reasons”, can effect an application for indefinite leave to remain regardless of whether an Applicant’s home is in the UK.  

Therefore, it is advisable to seek professional legal help before making any applications for indefinite leave to remain based on your long resided to ensure you do in-fact qualify.  

Should you have any further questions please contact our legal advisers directly: 

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk 

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

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