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There is currently a route to apply for indefinite leave to remain (ILR) in the UK on the grounds of long residence: if a migrant has spent ten years or more in the UK with continuous and lawful leave to remain, they may be eligible to apply for settlement.

A recent judgment handed down from the Court of Appeal in England has muddied the waters somewhat in terms of the requirement for leave being ‘continuous’.

The Home Office’s current guidance on long residence applications interprets the Immigration Rules as allowing for discretion to be exercised to disregard previous very short periods of overstaying within the ten-year period of continuous and lawful residence being relied upon.

However, on 21 June 2019, the decision of R (Ahmed) v Secretary of State for the Home Department was issued. Mr Ahmed, a Bangladeshi national, had applied for ILR on the grounds of long residence. During the ten-year period that Mr Ahmed sought to rely upon as continuous and lawful residence, there were two short gaps during which Mr Ahmed had made late applications to extend his leave to remain after his current leave had expired. The Home Office refused the application on the basis of these short gaps in Mr Ahmed’s continuous lawful residence, and Mr Ahmed challenged this decision. The Court of Appeal interpreted the Immigration Rules strictly, and held that applications for long residence should be refused where there is any period of overstaying at all during the ten-year period being relied upon. It also indicated that the Home Office should consider amending its guidance to reflect this.

The current Home Office guidance on long residence applications dates back to April 2017 and no updates have yet been issued. As such, we will need to await updated guidance from the Home Office in light of this judgment. It remains to be seen whether the Home Office will continue to allow for discretion for certain very short periods of overstaying, or whether its policy will now change in light of Ahmed. As things stand at the minute, the position is inherently confusing with the Court of Appeal adopting one interpretation of the Immigration Rules and the Home Office guidance adopting another.

If you wish to discuss making an application for settlement on the grounds of long residence then please do not hesitate to contact one of the solicitors in our immigration team.