Insight

Long Residence applications – how is the period calculated?

A recent Court of Appeal decision looked at issues surrounding gaps in 10 years continuous lawful residence (ILR) applications.

What does the case tell us about the calculation of days towards the 18 months required to meet the Immigration Rules with respect to the Long Residence (ILR) application?

The rules about continuous lawful residence

The Immigration Rules allow applicants to apply for ILR following 10 years continuous lawful residence into he UK pursuant to Paragraph 276B of the Immigration Rules.

The period of residence is not considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months on any single occasion or 18 months in total during the past 10 years up to the date of the application.

This poses the question – how many absence days are permitted during an absence for a period of 6 months on any single occasion or 18 months in total?

The Home Office Long residence guidance from October 2019 states that  6 months is equivalent to 180 days and subsequently 18 months equals 540 days. This shows that the Home Office interprets 1 month as consisting of 30 days.

The continuous residence is treated as broken if the total absence days have exceeded the aforementioned threshold – the Home Office interprets this very strictly and will only make exceptions only if the absence was “compelling or compassionate circumstances”.

Rules strictly applied

In my dealings with Long Residence applications, the Home Office have refused applications due to the applicants’ excessive absence despite them having strong and reasonable explanations and evidence as to why they were outside the UK.

However, it should be noted that the Home Office’s interpretation has no authority in law.

The Home Office calculation is mathematically incorrect. A year can be 365 or 366 days. 365 days divided by 12 months should be 30.4 instead of 30. A month can be 28, 29, 30 or 31 days, it should therefore not be treated as 30 days. The Home Office calculation was indeed unlawful as shown in the recent case law below:

Recent Case Law – Chang

The Immigration Upper Tribunal has provided clarity on the law and questions posed in respect of whether 18 months are in fact, 540 days.

1. On 12th January 2009, the appellant arrived in the UK for education purposes. She returned to Hong Kong to visit family and travelled during her residence in the UK. Her absence totaled to 543 days outside of the UK during her 10 years continuous period up to the date when her Long Residence (ILR) application was submitted on 13th June 2019.

2. On 12th September 2019, her application was refused as the Respondent interpreted 18 months to be considered as 540 days, therefore her continuous residence had been broken and did not meet the requirements. This is an illustration of how strict the Home Office is on this issue; her application was refused for exceeding the threshold by 3 days (543).

The Upper Tribunal held that the Home Office’s interpretation on the guidance was incorrect and ruled that 18 months should be 548 days in paragraph 33 of the judgment. As a result, the appeal was allowed and she has obtained her ILR to remain in the UK.

Thoughts

Prior to the result of this case law, numerous Long Residence applications were refused by the Home Office by virtue of applicants barely exceeding 540 days. Following this case law, applicants are now in a better position as it clarified the total amount of absence days that is allowed for long residence applications — 18 months is equivalent to 548 days.

In any event, careful consideration of a person’s immigration history ought to be made before advising on the merits of a Long Residence application, particularly to access the gaps in 10 years continuous lawful residence between ‘book-ended gap’ residence (any periods of past overstaying or overstaying between periods of leave) which may be allowed where paragraph 39E applies, and an ‘open-ended gap’ (no grant of leave on the original application) residence.

Immigration lawyers for long residence applications

If you have 10 years continuous lawful residence in the UK and have exceeded the threshold of the permitted absence days as well as remembering your immigration history vaguely, we are able to assist and advise you on how to deal with the excessive absences in the UK.

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