In April 2024, the United Kingdom's immigration rules underwent substantial changes. These changes reflect the objectives outlined in the Home Office's five-point plan to curb net migration to the UK.
Whilst much of the spotlight has been on the raised salary thresholds for sponsored workers and the financial criteria for family applicants, significant amendments have also been made to the long residence route (which has historically faced legal scrutiny and criticism due to ambiguity in drafting).
What is a long residence application?
The long residence route allows individuals who have maintained lawful residency in the UK for a continuous period of 10 years to apply for Indefinite Leave to Remain (ILR - also known as settlement or permanent residence). ILR gives an individual the right to live permanently in the UK and serves as a significant milestone on the pathway to naturalising as a British citizen.
ILR applications usuallynecessitate continuous residency within a single visa category. However, a long residence application can encompass 10 years of residency under a combination of differing categories (with a few exceptions).
The route is particularly favoured by individuals who have spent a significant portion of time studying in the UK since the student category does not directly lead to ILR.
Lawful residence compared to continuous residence
A successful application for ILR requires an understanding of the distinction between "lawful" and "continuous" residence. Lawful residence pertains to presence in the UK while holding valid leave to enter or remain. This includes situations where applications are submitted in time (meaning before the expiration of current permissions), and when appeals are lodged within stipulated deadlines, thereby granting applicants the protection afforded by 3C Leave.
Continuous residence, however, refers to an unbroken period of residing in the UK without excessive absence.
What has changed?
Appendix Long Residence came into effect on 11 April 2024, replacing the provisions that were previously concealed within an obscure section of the rules. There have been several key changes aimed at enhancing transparency and consistency across the UK immigration system.
1. Requirement to have had current permission (where granted from 11 April 2024) for 12 months or more
The rules now include a provision stating that applicants must have held their current permission (if granted after 11 April 2024) or have been exempt from immigration control for at least 12 months before applying.
As a result, some individuals may need to wait several months after completing 10 years of continuous residence in the UK to meet this new requirement.
Scenario:
A will achieve 10 years of continuous residence in the UK on 01 August 2024. However, since A switched from a Graduate to a Skilled Worker visa on 01 May 2024, A will need to wait until 01 May 2025 to be eligible to apply for ILR based on long residence.
This amendment introduces a degree of rigidity, and the rationale behind the Home Office's requirement for applicants to hold their current permission for one year remains unclear.
2. Continuous residence requirement
A largely welcomed change has been to the continuous residence requirement. Previously, applicants were restricted to spending no more than 548 days outside the UK during the 10 years, with a further limitation of 184 days for any single absence. Now, for greater consistency across immigration routes, the rules are as follows:
- Any single absence that commenced before 11 April 2024 must not exceed 184 days;
- Any part of a 10-year qualifying period falling before 11 April 2024 must not have total absences of more than 548 days;
- From 11 April 2024, applicants should not have stayed outside the UK for more than 180 days in any 12-month rolling period.
Although applicants will enjoy more leniency regarding absences moving forward, the new provisions will not apply retrospectively. For those whose 10-year period commenced before 11 April 2024, the 548-day maximum limit will still apply to their residence before that date.
Scenario:
A will complete their 10-year residence in the UK on 12 August 2026. From 12 August 2016 to 11 April 2024, they must not have spent more than 548 days outside the UK, with any single absence not exceeding 184 days. From 11 April to 12 August 2026, they should not have spent more than 180 days outside the UK in any 12-month rolling period.
3. Exercising treaty rights as a qualifying status
Another positive amendment is the explicit inclusion of "exercising EEA treaty rights" within the rules as a qualifying status for a long residence application. Previously, only caseworker guidance made provisions for applicants who had exercised their rights under the EEA Regulations. This provides more clarity and transparency compared to the pre-11 April 2024 position.
However, the possibility of relying on a 'historic' period of residence has ended. By doing so, the Home Office has closed a loophole that benefited many individuals, especially EU citizens who often lacked documentation due to their previous exemption from immigration controls pre-Brexit.
Combined with the additional challenges faced by late EU Settlement Scheme applicants since August 2023, the Home Office has significantly narrowed the options available to EEA citizens with longstanding ties to the UK.
Why is this significant?
Whilst these changes undoubtedly streamline the path to settlement for numerous young students and individuals with extensive periods of absence over the years, they also carry consequences for those who had not previously pursued formal applications but had accumulated a decade of residency under the old, long residence regulations.
Moving forward, applicants seeking ILR based on long residence must navigate the process with heightened attention to detail, ensuring all criteria are met and understanding the implications of transitional provisions.
These changes highlight the need for careful consideration and informed decision-making in immigration matters as individuals and authorities adapt to the evolving regulatory landscape.
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.