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10 year residence and the continuous residence rule

Many migrants are aware of the long residence rule, but often misinterpret breaks in continuous residence.  It is also regularly misinterpreted by Home Office officials.  This blog shows you how to calculate your continuous residence.

10 year long residence rule under 276B immigration rules 

The rules require that the applicant has a relevant English qualification or is from a majority English-speaking country. There is a list of majority English-speaking countries available on the Home Office website and it is worth checking this even if your first language is English. If you’re not from a majority English-speaking country then a degree level or above qualification from an English-speaking country will result in the rule being met. You’re also able to undertake an exam to level B1. 

The person applying under this rule must also have knowledge of life in the UK and have taken the life in the UK exam.

The applicant must also not fall foul of the general grounds of refusal and there must be no other ‘public interest reasons’ as to why the application should be refused. This is a wide topic beyond the scope of this blog, but it’s not the main reason why people are refused under this route.

 When to apply?

The key requirement is that the applicant must have 10 years lawful and continuous leave in the UK in order to apply. They can apply up to 28 days prior to meeting this requirement. In essence continuous lawful leave means residing in the UK with leave to enter (visa) or leave to remain.  Absences from the UK are allowed to some degree.

An applicant must not have been out of the UK for a total of 540 days in that 10 year period. The applicant will be required to submit a full travel history for 10 years and absences beyond 540 days will only be allowed in a narrow range of circumstances. Many applicants came as children to study in the UK in doing so they often spent holidays outside the UK and these absences often total up to more than 540 days. Absences for holidays, however usual, would not result in the application being granted exceptionally. It would normally be appropriate to apply for another form of leave and refrain from extended absences, until those absences no longer form part of the previous 10 years.

A person may also leave the UK with valid leave and apply for entry clearance within 6 months of that departure without falling foul of the continuous residence rule. It’s worth noting, however, that these absences will be added to the 540 day limit.

Why are people denied leave?

One of the main reasons people are refused under this route are due to a break in continuous residence. A person’s leave may expire and a new application be submitted within 14 days for applications on or after 24 November 2016 or 28 days prior to 24 November 2016.  However, for this leave to count towards continuous residence that out of time application must have been granted.

It is very common for people to be refused leave in another category and to apply within 14 days under the 10 year long residence rule, for that to be refused and for them to proceed to appeal. It may be that they have acquired their 10 years in that time, however, as the final application has not been granted, it does not count towards their continuous residence. It is also common for people to make repeated applications after refusal and to try and rely on the 14 day or 28 day rule, this does not count towards continuous residence as the application made out of time, i.e. within 14 days of 28 days and is not subsequently granted.

Read our blog

For the second part to this piece follow our blog.

If you have any further queries give us a call at 020 7118 4546 or email: info@westkin.com

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