Many readers will be aware that there is a ten-year continuous lawful residence route to indefinite leave to remain. A migrant who has accumulated ten years’ continuous lawful immigration leave, on any combination of visas, may qualify.
What does “lawful residence” mean in this context? Well, in the first place, and fairly obviously, it means that you must have a valid visa.
But there is a more complex issue attached to this. Does it also mean that there should not be any “gaps” between the different grants of leave over the ten-year period? The immigration rules allow (within strictly defined limits) a migrant to overstay for a short period and submit an application out of time as an overstayer. If the application is successful then the overstaying migrant’s immigration status is restored.
However, overstaying is a criminal offence, not just an immigration offence. Probably not everybody realises this, and this understanding is no doubt encouraged by the fact that prosecutions for overstaying are very rare. But nonetheless it is true, and it sometimes happens that somebody applying for settlement under the ten-year rule has one or more short periods of overstaying in their immigration history.
The question is: Would such a person have continuous “lawful” residence?
The relevant immigration rules might indicate that they would have. They say that an applicant must not be in breach of immigration laws at the time of application but they specifically state that such short periods of overstaying (either currently or in the past) are excluded from the definition of “breach of immigration laws”.
There is, you could say, a logic to this. If the Home Office has approved a visa application at some point in the past and leave has been granted then why should they retrospectively revisit their decision and determine that there was something wrong with that grant of leave?
So you might understand from this that such periods of overstaying are forgiven and forgotten.
And the Home Office published policy guidance further supports this understanding, although in a rather soft style:
“You may grant the application if an applicant: • has short gaps in lawful residence through making previous applications out of time…”.
The word “may” clearly indicates that there is an exercise of discretion in play, bur words in other parts of the policy guidance rather imply that discretion is likely to be exercised in favour of the applicant.
So our understanding (and, we believe, most people’s) was that a person who had such short gaps of overstaying within their ten-year history and who otherwise met the requirements would succeed in their application, and that it would be appropriate to advise clients accordingly.
But two recent court decisions have thrown this into disarray. Both the Upper Immigration Tribunal and the Court of Appeal have determined that “continuous” residence and “lawful” residence are two quite separate categories. Their decisions envisage that a migrant might have had ten years’ continuous residence but not ten years’ lawful residence.
Keen students of immigration law might be attracted by this argument, at least initially. Given that overstaying is a criminal offence then it could be well arguable that such a migrant with a period of periods of overstaying has not had lawful residence, even if it were continuous. This reflects the curious legal anomaly that the Home Office tolerates and potentially forgives overstaying whereas the criminal law does not.
But the keen student would also appreciate that there are wider considerations. The Home Office always has discretion to act more generously than the immigration rules would strictly dictate. And the policy guidance seems to constitute just such an act of the exercise of favourable discretion.
But the Court of Appeal looked at this rather differently. Relying on established caselaw it said that policy guidance cannot be used as an aid to interpreting the immigration rules: ie effectively, that it should in this case be ignored.
Suffice to say that these are deep and controversial legal waters. We hope that at some point the Home Office will change or clarify its rules and/or policy guidance.
But, in the meantime, if you are thinking of applying under the ten-year rule and you have overstaying issues you would be well advised to take good legal advice first.