Until 11 April 2024, 10 Year Long Residence Indefinite Leave to Remain applications required absences from the UK of no more than 18 months (548 days) in total, and 6 months (184 days) at one time.
On 11 April 2024, as discussed in my earlier post, the UK Home Office made Big Changes to the 10 Year Long Residence ILR Rules.
Since 11 April 2024, there has been confusion and many hoped that the 548 day limit had been abolished. The confusion was largely caused by a lack of clarity in the caseworker Guidance published on 11th April 2024 that said that there was "no 548 day limit". Immigration lawyers have been working hard to understand and interpret these rules and petitioned the Home Office for clarity.
On 9 July 2024, the Home Office provided clarification. However, unfortunately for some applicants, the much anticipated changes to the Home Office Guidance are not favourable. Newly published Guidance confirms that 548 days lives on as a maximum total number of days for any part of a long residence ILR ten year period prior to 11 April 2024.
Here, I examine permitted absences in a 10 year Long Residence ILR application and the recently updated Home Office Guidance in detail.
To discuss your 10 Year Long Residence ILR application with one of our immigration barristers, contact our Long Residence Settlement lawyers on 0203 617 9173 or complete our enquiry form below.
The Relevant Immigration Rules – Appendix Long Residence and Appendix Continuous Residence
Since 11 April 2024,Appendix Long Residencesets out:
Continuous residence requirement for settlement on the Long Residence route
LR 12.1. The applicant must have met the continuous residence requirement set out in Appendix Continuous Residence for the entirety of the qualifying period.
Appendix Continuous Residencesets out the following relevant provisions:
CR 2.1. To meet the continuous residence requirement the applicant must not have been outside the UK for more than 180 days in any 12-month period (unless CR 2.2., CR 2.2A, CR 3.1. or CR 3.2 applies, subject to CR 2.3.).
This provision itself is overall more generous than the previous ILR provisions, as the 548 total number of days over ten years could be far lower than 180 days in a rolling 12 month period. However, as CR2.1 is not the whole story, the important transitional provision is:
CR 2.2A. Where the application is under Appendix Long Residence, for any qualifying period before 11 April 2024, the applicant must not have been outside the UK for more than 184 days at any one time, and must not have spent a total of more than 548 days outside the UK during that qualifying period, subject to CR 2.3.
This preserves the 184 day rule for pre-11 April 2024 residence.
Applicants for settlement based on a ten year period for just under the next decade, will of course include periods of residence prior to 11 April 2024. Whether or not this is subject to the 548 day requirement was previously made unclear for applicants because of the (now replaced) caseworker Guidance.
The Source of the Confusion: The Former Home Office Long Residence and Continuous Residence Caseworker Guidance
The (now replaced) Long Residence Caseworker Guidance, version 11 April 2024 set out:
These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024.
This means that:
- any single absences started before 11 April 2024 must be no longer than 184 days
- a 10-year period completed before 11 April 2024 must not have total absences of more than 548 days –for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit
- from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period
The (now replaced) Continuous Residence Caseworker Guidance, dated 12 April 2024 set out various examples of how 548 days did not apply:
Example 2
An applicant's 10-year qualifying period would be completed on 30 April 2024. The applicant had been absent from the UK for 40 days in 2022 and 11 days between 10 April 2024 and 21 April 2024.
As the absences started before 11 April 2024, any single absences started before 11 April 2024 must be no longer than 184 days.
As the 10-year period extend [s] beyond 11 April, there is no 548-day limit.
Example 3
An applicant's 10-year qualifying period will be completed on 30 April 2026. The applicant had been absent from the UK for 40 days in 2023. The applicant is also planning to leave the UK between March and July in 2025 for 180 days.
As the absences in 2023 started before 11 April 2024, they must be no longer than 184 days.
Any absence that started after 11 April 2024 must be less than 180 days in any 12 calendar months.
As the 10-year period extends beyond 11 April, there is no 548-day limit
This led to many applications being submitted, and the Home Office simply not deciding them – preferring to delay consideration while policy changes were considered. This will likely lead to strong legitimate expectation arguments for applications submitted prior to the publication of the new Guidance. However, this is no longer an option as the Guidance has been amended.
The Clarified Position: The Current Home Office Long Residence and Continuous Residence Caseworker Guidance
However, this week, new versions of both sets of Guidance were published.
TheLong Residence Guidance ( version 21.0, published for Home Office staff on 08 July 2024 / updated 09 July 2024) sets out:
Appendix Continuous Residence (at paragraph CR 2.2A) recognises that its provisions are different from the previous long residence rules at paragraph 276A and makes transitional arrangements specifically for long residence applicants. These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024
And
Appendix Continuous residence (at paragraph CR 2.2A) recognises that its provisions are different from the previous long residence rules at paragraph 276A and makes transitional arrangements specifically for long residence applicants. These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or more than 548 days in the 10-year qualifying period, where that absence was before 11 April 2024.
TheContinuous Residence Guidance ( version 5.0, published for Home Office staff on 08 July 2024 / updated 09 July 2024) sets out:
Absences from the UK
Continuous residence is broken in specified circumstances such as when an applicant:
- is absent for more than 180 days in any 12-month period without permitted reasons
- is applying under Appendix Long Residence and was absent for a period of more than 6 months (184 days) at any one time where the absence started before 11 April 2024,or spent a total of 18 months (548 days) outside the UK in any part of their qualifying period before 11 April 2024– for any part of the qualifying period on or after 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period (see Calculating the length of absences)
In relation to transitional arrangements:
Appendix Long Residence: transitional arrangements for applicants where the absence started before 11 April 2024
Appendix Continuous Residence (at paragraph CR 2.2A) recognises that its provisions are different from the previous long residence rules at paragraph 276A and makes transitional arrangements specifically for long residence applicants.
These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time where the absences started before 11 April 2024, or for more than a total of 548 days overall in any part of their qualifying period before 11 April 2024.This means that:
- any single absences started before 11 April 2024 must be no longer than 184 days
- any part of a 10-year qualifying period before 11 April 2024 must not have total absences of more than 548 days
- from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period (see Calculating the length of absences)
The Guidance overall is far clearer, which is normally a good thing, albeit not for (typically) student applicants with high levels of absence due to school / university holidays.
The 'examples' have been updated in line with the corrected approach:
Example 2 – Appendix Long Residence (qualifying period started before 11 April 2024 and was completed on or after 11 April 2024)
An applicant under Appendix Long Residence:
- completed a 10-year qualifying period on 20 January 2025
- had a total of 5 absences from the UK during the 10-year qualifying period:
- absence 1 – 1 July 2015 until 28 November 2015
- absence 2 – 1 January 2017 until 31 May 2017
- absence 3 – 1 October 2018 until 28 February 2019
- absence 4 – 1 April 2024 until 1 July 2024
- absence 5 – 1 August 2024 until 20 January 2025
As the qualifying period included time both prior to 11 April 2024, and on or after 11 April 2024, these 2 periods are considered individually in accordance with the relevant rules for that period, to assess whether continuous residence is broken.
Prior to 11 April 2024, and during their 10-year qualifying period, the applicant had 3 completed absences (so they left and returned to the UK prior to 11 April 2024).
These 3 absences:
- did not exceed the applicable individual absence limit of 184 days
- did not exceed the total absences limit of 18 months (548 days)
Continuous residence was therefore not broken in the 3 absences which completed prior to 11 April 2024.
The applicant had 2 further absences during their 10-year qualifying period; an absence from 1 April 2024 until 1 July 2024, and an absence from 1 August 2024 until 20 January 2025.
The absence from 1 April 2024 until 1 July 2024:
- did not exceed the individual absence limit of 184 days (which is the applicable limit for any absence that started prior to 11 April 2024)
- did not exceed the total absences limit of 18 months (548 days), which applies to periods prior to 11 April. The total absences included for the purpose of calculating the 548 day limit are:
- the period of absence from 1 April 2024 until 10 April 2024
- the 3 absences which were completed prior to 11 April 2024 The absence from 1 August 2024 to 20 January 2025:
- did not exceed the applicable individual absence limit of 180 days in any 12- month rolling period (which applies to absences that commenced on or after 11 April 2024) – the earliest 12-month rolling period is from 1 August 2024, as this was the beginning of the first absence to start on or after 11 April 2024 – see Calculating the length of absences
Continuous residence is therefore not broken throughout the qualifying period.
Impact of the Changes to the 548-Day Rule for Long Residence ILR Applications
This means that for any periods relied upon in a long residence application falling before 11 April 2024, absences of 548 days in total and absence of 184 days in one go both break continuity. This continues the stricter approach of the old Rules in relation to long residence ILR applications when compared with other routes to settlement, which have the rule that absences should not exceed 180 days in any rolling 12 month period.
The short lived possibility of submitting an application and making arguments in relation to legitimate expectation has ended for applications not yet submitted.
Therefore, if Applicants have absences in excess of 548 days prior to 11 April 2024, the options are as before: either wait until these absences are not within the ten year period, or provide evidence of an exception applying under CR2.3, which sets out reasons for which periods spent outside the UK would not count towards periods of absence:
(a) the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if on a sponsored route their sponsor agreed to the absence for that purpose; or
(b) travel disruption due to natural disaster, military conflict or pandemic; or
(c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; or
(d) research activity undertaken by a Skilled Worker which was approved by their sponsor and where the applicant was sponsored for a job in one of the following SOC 2020 occupation codes:
- 2111 Chemical scientists
- 2112 Biological scientists
- 2113 Biochemists and biomedical scientists
- 2114 Physical scientists
- 2115 Social and humanities scientists
- 2119 Natural and social science professionals not elsewhere classified
- 2161 Research and development (R&D) managers
- 2162 Other researchers, unspecified discipline
- 2311 Higher education teaching professionals; or
(e) research activity undertaken by a person on the Global Talent route who was endorsed by:
(i) The Royal Society; or
(ii) The British Academy; or
(iii) The Royal Academy of Engineering; or
(iv) UKRI; or
(f) research activity undertaken by a person on the Global Talent route who qualified on the basis of a prize listed in table 6 of Appendix Global Talent: Prestigious Prizes; or
(g) for an applicant under Appendix Settlement Family Life, absences for work, study or supporting family overseas, so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence; or
(h) where the applicant's partner is absent from the UK on Crown service as:
(i) a regular member of HM Armed Forces (the Royal Navy, the Royal Marines, the Army (including the Brigade of Gurkhas) and the Royal Air Force); or
(ii) an employee of the UK Government, a Northern Ireland department, the Scottish Administration or the Welsh Government; or
(iii) a permanent member of the British Council, and the applicant accompanies them overseas.
10 Years Long Residence ILR Application Immigration Lawyers
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.