Ten-Year continuous lawful residence settlement route – excessive absences

Now and again we see cases in the media where an eminently deserving person gets their visa application refused and it kicks up a storm. (Actually, a lot of other eminently deserving people who do not get into the media also have their visa applications refused, but that is a different story.)

 

Ms Asiya Islam was a Cambridge PhD student who applied to the Home Office for settlement on the basis of ten years’ continuous lawful residence. As some readers will know, this is an immigration route that enables a migrant who has lived in the UK for at least ten years on any kind of visa(s) to apply for indefinite leave to remain on that basis.

 

This matter of “living in the UK” sometimes gets quite technical. How many days per year does somebody have to be physically present in the UK to meet this requirement? The rules about this vary from visa type to visa type and in some very cases they are very liberal. In the case of the ten-year settlement route they are relatively strict: the migrant must not have spent more than 540 days outside the UK during the ten-year period and, additionally, they must not have spent more than six months outside the UK on any one occasion.

 

But, still, this works out at 54 days per year and it does not seem wildly unreasonable. The problems may come about when a migrant spends large amounts of time outside the UK for some special reason or for reasons outside their control.

 

In the case of Ms Islam she had spent about one year in her native India conducting research for her PhD. This meant that her application for settlement was very probably doomed to failure: clearly she had broken the six-month rule, even if she had not broken the 540-day rule. And indeed her application was refused by the Home Office.

 

It would appear that she did not take good legal advice before making her application and it has been suggested that she might have been relying on the wrong rule. It was suggested that she was relying on a rule for certain Tier 2 Skilled Worker migrants who are working in particular Ph D-level jobs, who are allowed excessive absences outside the UK for research relevant to their jobs and may still qualify for settlement.

 

But the trouble was that Ms Islam held a Tier 4 Student visa, not a Tier 2 Skilled Worker visa, so, if she was trying to rely on this rule it would not work for her.

 

Not for the first time, we would like to point out that the immigration rules are intricate and complicated and that it is appropriate to take good legal advice before deciding what to do.

 

There are various potential problems with the ten-year settlement route. In some cases a migrant might not clock up ten years’ continuous residence when they think they do. This might be – as in Ms Islam’s case – because of excessive time spent outside the UK. But it might also be (as we have explained in a previous article (“Ten-Year continuous lawful residence settlement route – overstaying”)) because of “gaps” between the different grants of leave.

 

In such a case a migrant may be well advised to try and extend their leave rather than make a weak settlement application. It is important to understand that the relevant ten-year period is the most recent ten-year period, and so any adverse events can fall out of the picture if enough time goes by.

 

If a migrant makes such a weak settlement application and it is refused this is (a) upsetting and (b) expensive – Home Office fees are at the time of writing are nearly £2,400. Not only that, but somebody who has a refused application has very little time to try and repair their immigration situation and they might thus find yourself in difficulties.

 

If you have, or you think you might have, a tricky situation with your ten-year settlement application we will be able to give you good and accurate advice.