Rumours and speculation around the upcoming introduction of ‘earned settlement’ are rife. One anticipated change is that the Long Residence route – which allows individuals to apply for indefinite leave to remain after spending a continuous and lawful period of 10 years in the UK – may be scrapped.
Consequently, we have received an influx of enquiries from individuals hoping to secure indefinite leave to remain before these rumours become reality. In many cases, those queries come from clients who have exceeded the specified absence thresholds and are hoping to rely on a Home Office caseworker exercising discretion in respect of any ‘excess’ time spent overseas.
As a reminder, the absence requirements under the Long Residence route are:
- No more than 548 days outside the UK during the qualifying period prior to 11 April 2024;
- Any single absence which started before 11 April 2024 must not be longer than 184 days; and
- Since 11 April 2024, absences must not be more than 180 days in any 12-month period.
In terms of exercising discretion, the Home Office’s published Guidance does confirm that absences can be disregarded in certain circumstances – the most common of those being:
- Travel disruption due to a pandemic; and / or
- Compelling and compassionate personal circumstances, such as the life-threating illness of the applicant or a close family member
The Guidance provides little to no detail about what exactly may (or may not) fall within these exceptions; however, in practice, it is very difficult to get a caseworker to exercise discretion.
Set out below are some of the key challenges which arise:
COVID-19 RELATED ABSENCES
In respect of COVID related absences, evidence that the applicant attempted to return to the UK (i.e. had a flight booked) but was prevented from doing so (i.e. had their flight cancelled or were unable to travel due to contracting COVID or having to quarantine) is generally required. While the Home Office Guidance does require caseworkers to consider whether absences are “urgent or unexpected” (which the COVID pandemic was, by its very nature), the general rule is that a person’s “free choice” to leave the UK during the pandemic may not be sufficient. That said, in some cases, where supporting evidence is available – including, for example, where a country closed its borders and where the applicant then returned to the UK as soon as possible again once they re-opened – we have been able to obtain discretion in some of these cases.
COMPELLING AND COMPASSIONATE CIRCUMSTANCES
Regarding compelling and compassionate personal circumstances, absent the death or a serious medical emergency of an applicant’s family member (or the applicant themselves!), this is another difficult ground to succeed on, and any such arguments will need to be supported by documentation. Overall, the general approach appears to be that wherever there is an element of free will in the applicant’s decision to leave (or remain outside) the UK, the Home Office are more reluctant to exercise discretion. Nevertheless, it is worth seeking advice in such cases as a person’s prospects will differ depending on the facts and evidence available.
ABSENCES WHILE WITHOUT A VALID VISA
Importantly – to qualify under this route, for any periods of absence from the UK, you must have left the UK with a valid visa and (if your visa expired while you were overseas) you must then have returned to the UK with another valid visa. The catch with this rule is that for any time spent outside the UK where you did not have a valid visa, that time will need to be added onto your qualifying period. As a worked example: if you left the UK on 1 April 2020 with a valid visa, but your visa expired on 1 May 2020, and you were then granted a new visa on 1 September 2020 and entered the UK on 5 September 2020 – the period between 1 May 2020 and 1 September 2020 (4 months) will need to be added to your total qualifying period – i.e. you will need to show you’ve completed 10 years and 4 months of residence in the UK at the date you submit your Long Residence application (*noting the rule that you can submit the application up to 28 days before you complete that period).
In summary, applications under the Long Residence route can be extremely challenging and involve elements of subjectivity that can make the outcome of these applications very hard to predict.
If you are considering applying for indefinite leave to remain with excess absences, we strongly recommend that you take immigration advice beforehand. Our immigration team has extensive experience assisting with these applications and are well placed to advise
About the author
Josephine is a senior associate in the private client immigration team, where she advises high net worth individuals on a range of UK immigration and nationality matters.
